PLJ 2024 Cr.C. 163
[Lahore High Court, Lahore]
Present: Sardar Muhammad Sarfraz Dogar, J.
SARFRAZ ALI--Petitioner
versus
STATE etc.--Respondents
Crl. Misc. No. 82227-B of 2022, decided on 10.2.2023.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 498--Pakistan Penal Code, (XLV of 1860), Ss. 302, 397, 109 & 34--Pre-arrest bail, grant of--Two version--Second pre-arrest bail--Petition as per FIR alongwith co-accused abetted unknown accused persons for commission of murder--Now taking up next question as to whether any fresh ground is available to petitioner or not--Before further commenting upon instant pre-arrest bail petition of petitioner, wherein notice was issued to State, complainant and ad-interim pre-arrest bail was granted to petitioner vide order dated 22.12.2022, it is apropos to discuss facts of case till dismissal of first pre-arrest bail petition of petitioner and thereafter filing of instant pre-arrest bail petition--After registration of FIR, petitioner alongwith others joined investigation on 03.03.2022 and was found involved in case vide case diary No. 18 dated 15.03.2022--Thereafter, investigation remained carried on and vide case diary No. 34 dated 19.05.2022, arrest of petitioner was deferred by investigating officer and subsequently vide case diary No. 44 dated 02.06.2022, petitioner was found innocent--These facts are self-explanatory and justly constitute a fresh ground for filing of instant petition as same were neither available nor in existence at time of withdrawal of earlier bail petition--The arguments of learned counsel for complainant/Respondent No. 2 that there exists no fresh ground which entitles petitioner to file instant second petition for pre-arrest bail are thus, found to be misconceived--Now adverting to merits of instant petition for pre-arrest bail, in wake of above discussion in respect of fresh ground, it is noted that prosecution itself has two versions qua petitioner--The case to extent of petitioner squarely falls within ambit of further inquiry and since trial in state case is on its way and private complaint has also been filed by complainant, therefore, indictment of petitioner in crime would be best adjudged by trial Court after recourse to evidence--Held: It is an established principle of law that while deciding pre-arrest bail, merits of case can be touched upon by Court--In these circumstances, it is trial Court who after recording of evidence would decide about guilt or otherwise of petitioner--Nothing is to be recovered from petitioner; therefore, no useful purpose would be served by sending petitioner behind bars.
[Pp. 169, 170 & 171] C, D, E, F, G & H
Second bail petition--
----No second bail petition is maintainable and in this regard exhaustive material on this aspect is available--Yet at same end, it has also been settled by august Supreme Court of Pakistan that second bail petition can be entertained in presence of a fresh ground. [P. 166] A
PLD 2014 SC 241.
Second bail petition--
----No second bail petition is maintainable even if earlier was withdrawn simpliciter or after arguing case on merits on some or full length--Even no second bail petition can be filed on basis of a ground which was available to a petitioner at time of so withdrawal but abandoned or not pressed--The only entitlement for filing of second bail petition is availability of a fresh ground i.e. a ground which was not available or in existence at time of decision of earlier application. [P. 169] B
PLD 1989 SC 347 & PLD 2021 SC 898.
Rai Zamir-ul-Hassan Kharal, Advocate for Petitioner.
Mr. Ikraam Ullah Khan Niazi, DPG for State.
Mr. Mudassar Naveed Chatha, Advocate for Complainant.
Date of hearing: 10.2.2023.
Order
Through this petition, the petitioner Sarfraz Ali seeks pre-arrest bail in case FIR No. 50/2022 dated 07.02.2022, registered under Sections 302, 397, 109 & 34 of PPC with Police Station Ahmad Pur Sial, District Jhang.
1.A It is pertinent to mention here that it’s second pre-arrest bail petition of the petitioner, as the first one was dismissed as having been withdrawn after arguing the case at some length vide order dated 16.05.2022 passed in Crl.Misc.No. 16679-B of 2022.
2. Precisely, the only allegation against the petitioner as per FIR is that he alongwith his co-accused abetted unknown accused persons for commission of murder of Umer Farooq/Husband of Respondent No. 2.
3. Heard. Record perused.
4. To start with instant case, it would be apposite to figure out the main questions involved herein to ponder upon and for consideration; which after hearing the arguments of both the parties and going through the record are found to be as follows:-
Whether second pre-arrest bail petition is maintainable when once the first one has been dismissed as having been withdrawn after arguing the same at some length?
If above question is answered in affirmative then as to whether fresh ground entitling concession of pre-arrest bail to the petitioner is available or not?
5. Taking up the first question, chronological order of the facts of case of the petitioner are that FIR was registered on 07.02.2022. The petitioner had availed the relief of protective bail till 11.02.2022 vide order dated 08.02.2022 passed in Crl.Misc.No. 7696-B/2022 titled “Sarfraz Ali v. The State etc.,”. Thereafter, on 10.02.2022, he approached the Court of first instance and moved his pre-arrest bail petition titled “Sarfraz Ali V. The State”, which was dismissed by the learned trial Court on 16.03.2022. Thereafter, the petitioner alongwith two others, approached this Court seeking relief of pre-arrest bail by filing Crl. Misc. No. 16679/B/22 titled “Sarfraz Ali, etc., v. The State, etc.”, which was dismissed as withdrawn vide order dated 16.05.2022. The same is reproduced as under:
“Learned counsel for the petitioners, after arguing the case at some length, wishes to withdraw this petition. This petition is, therefore, dismissed as withdrawn. Interim pre-arrest bail already granted to the petitioners vide order dated 17.03.2022 is recalled.”
(Emphasis supplied)
5.A. In the context of proposition involved in case in hand, it is observed that the august Supreme Court of Pakistan in a number of cases has held that no second bail petition is maintainable and in this regard exhaustive material on this aspect is available. Yet at the same end, it has also been settled by the august Supreme Court of Pakistan that second bail petition can be entertained in presence of a fresh ground. In this regard, in celebrated judgement titled as “Nazir Ahmed and another v. The State and others” (PLD 2014 Supreme Court 241), the august Supreme Court of Pakistan enunciated the certain principles of propriety and practice regarding filing, entertaining and deciding applications for bail, cancellation of bail or suspension of sentence and release on bail during the pendency of an appeal in criminal cases:
(i) …………..
(ii) …………..
(iii) Dismissal of an application for bail after attending to the merits of the case amounted to rejection of all the grounds available or in existence till the time of such dismissal whether such grounds were actually taken or urged or not and whether such grounds were expressly dealt with in the order of dismissal or not.
(iv) In case of dismissal of an earlier application for bail on the merits of the case a subsequent application for the same relief could be filed and entertained only if it was based upon a fresh ground, i.e. a ground which was not available or in existence at the time of decision of the earlier application.
(v) Withdrawal simpliciter of an earlier application for bail before addressing or hearing of any argument on the merits of the case does not preclude filing of a subsequent application for the same relief before the same Court and its decision by such Court on the merits of the case. In all cases of withdrawal of such an application the Court must faithfully record in its order as to whether withdrawal of the application had been requested and allowed after addressing and hearing of some or all the arguments on the merits of the case or withdrawal of the application had been requested and allowed before addressing and hearing of any argument on the merits of the case.
(vi) In a case of withdrawal of an earlier application for bail after addressing and hearing of some or all the arguments on the merits of the case no subsequent application for the same relief could be filed before or entertained by the same Court unless such subsequent application was based upon a fresh ground, i.e. a ground which was not available or in existence at the time of disposition of the earlier application.”
(Emphasis supplied)
5.B. The decision in above noted case (a judgment passed by a three-member Bench of august Court) has been endorsed in the case of “Muhammad Aslam v. The State” (PLD 2015 Supreme Court 41) (a judgment by a five-member Bench of august Court).
5.C. Similarly, in case titled “Ghulam Qammber Shah v. Mukhtiar Hussain and others” (PLD 2015 Supreme Court 66), the august Supreme Court of Pakistan has observed as follows:-
“…. The learned Judge-in-Chamber had also fallen in error in observing that the earlier application for bail submitted by Respondent No. 1 had not been dismissed on the merits of the case because the law declared by this Court in the above mentioned judgments clearly holds that dismissal of, an application for bail as having been withdrawn after arguing the case on the merits amounts to dismissal of the application on the merits of the case and a subsequent application for bail can only be filed and entertained if the same discloses any fresh ground for such relief, i.e. a ground which was not available till the dismissal of the earlier application for bail …”
(Emphasis supplied)
5.D. In case law titled “Muhammad Shoaib v. State and another” {PLJ 2022 SC (Cr.C.) 50}, it has been held by the august Court as follows:
“Confronted with petitioner’s choice to withdraw the motion by his own election, the learned counsel pleaded that withdrawal being simpliciter without adjudication on merits of the case did not stand in impediment to re-hearing of the plea; an argument found by us as entirely beside the mark. It is by now well settled that an 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. It has been held by this Court in the case titled The State through Advocate General N.W.F.P vs Zubair Ahmed and 4 others (PLD 1986 SC 173) that a 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. For all intents and purposes, it is an abandonment, resorted to, more often than not, in the face of an impending dismissal. After withdrawal of a pre-arrest.”
(Emphasis supplied)
5.E. In the same milieu, the august Supreme Court of Pakistan in the recent order dated 09.01.2023 passed in Criminal Petition No. 1496 of 2022 in case titled “Shahbaz Akmal v. The State through Prosecutor General Punjab, Lahore and another” has recapitulated that another bail application on the same ground cannot be repeated before the same Court and if a bail application is withdrawn during the subsistence of a ground on which bail is sought it cannot be taken again if the bail application was withdrawn.
6. The resume of the above discussion is that no second bail petition is maintainable even if the earlier was withdrawn simpliciter or after arguing the case on merits on some or full length. Even no second bail petition can be filed on the basis of a ground which was available to a petitioner at the time of so withdrawal but abandoned or not pressed. The only entitlement for filing of second bail petition is availability of a fresh ground i.e. a ground which was not available or in existence at the time of decision of the earlier application.
7. Now taking up the next question as to whether any fresh ground is available to the petitioner or not. Before further commenting upon the instant pre-arrest bail petition of the petitioner, wherein notice was issued to the State, complainant and ad-interim pre-arrest bail was granted to the petitioner vide order dated 22.12.2022, it is apropos to discuss the facts of the case till the dismissal of first pre-arrest bail petition of the petitioner and thereafter filing of instant pre-arrest bail petition. After registration of FIR, the petitioner alongwith others joined the investigation on 03.03.2022 and was found involved in the case vide case diary No. 18 dated 15.03.2022. Thereafter, the investigation remained carried on and vide case diary No. 34 dated 19.05.2022, arrest of the petitioner was deferred by the investigating officer and subsequently vide case diary No. 44 dated 02.06.2022, the petitioner was found innocent. The conclusion of the investigating officer got seconded by the higher police officers and report under Section 173, Cr.P.C. was filed by placing his name in column No. 2. The learned trial Court proceeded with the report and by taking cognizance, framed the charge against co-accused persons of the petitioner on 25.08.2022 and fixed the case for prosecution evidence. It is worth mentioning here that learned trial Court did not summon the petitioner to face the trial and proceeded with it to the extent of co-accused persons. During this span of time, the case to the extent of petitioner, took upside town turn when on the application of complainant, the District Police Officer Jhang, vide Order No. 68/DSB dated 04.07.2022, entrusted the investigation to DSP/SDPO Circle Shor kot. The said DSP vide case diary No. 62 dated 21.08.2022, found the petitioner involved in this case as abettor of the occurrence, and apprehending the arrest, by the investigating officer on the basis of said findings, necessitated the petitioner for filing of instant pre-arrest bail petition. These facts are self-explanatory and justly constitute a fresh ground for filing of instant petition as the same were neither available nor in existence at the time of withdrawal of earlier bail petition. The arguments of learned counsel for the complainant/ Respondent No. 2 that there exists no fresh ground which entitles the petitioner to file instant second petition for pre-arrest bail are thus, found to be misconceived.
8. Now adverting to the merits of the instant petition for pre-arrest bail, in the wake of above discussion in respect of fresh ground, it is noted that prosecution itself has two versions qua the petitioner. During the trial, neither the trial Court summoned the petitioner nor prosecution agitated the same and charge was framed against his co-accused persons and now the trial is at evidence stage. Furthermore, during the course of arguments, learned counsel for the petitioner also submitted attested copies of private complaint moved by the Respondent No. 2 on 07.02.2023 titled as “Mst.Suraiya Hafeez vs. Ghulam Shabir, etc” wherein the petitioner is also arrayed as accused. As such, keeping in view these aspects, the case to the extent of petitioner squarely falls within the ambit of further inquiry and since the trial in the state case is on its way and private complaint has also been filed by the complainant, therefore, indictment of the petitioner in the crime would be best adjudged by the learned trial Court after recourse to evidence. It is an established principle of law that while deciding pre-arrest bail, merits of the case can be touched upon by the Court. Reliance is placed on “Miran Bux vs. The State” (PLD 1989 SC 347), “Sajid Hussain @ Joji vs. The State” (PLD 2021 SC 898), “Javed Iqbal vs. The State” (PLD 2022 SCMR 1424) & “Muhammad Ijaz vs. The State” (2022 SCMR 1271).
9. It is also fact of immense importance that admittedly, post arrest bail petition (Crl.Misc.No. 45353-B of 2022) of the co-accused Aman Ullah has been granted by this Court vide order dated 10.10.2022 whereas that of co-accused Manzar Abbas has been allowed vide order dated 20.10.2022 by the learned trial Court. The alleged role of above noted co-accused persons has also been of abetment and the petitioner is also alleged of the same crime, therefore, the role ascribed to the petitioner cannot be distinguished from that of his co-accused persons. Rather, in view of above noted facts of his declaration of innocence by the I.O and his non-summoning during trial by the learned trial Court make the case of the petitioner at a better footing then that of his co-accused persons. Although during the course of arguments, learned counsel for the Respondent No. 2 argued that said orders have been challenged yet this argument is without any substance or force as the bail granting order has not been recalled hence, cannot be taken into consideration. In such like situation, when it is admitted fact that the role ascribed to the petitioner cannot be distinguished from the co-accused who have been granted post-arrest bail by the Court of competent jurisdiction. Any order passed by this Court on any technical ground that the consideration for pre-arrest
bail and post-arrest bail are entirely on different footing, would only be limited upto the arrest of the petitioner because of the reason that soon after his arrest he would become entitled for the concession of post-arrest bail on the plea of rule of consistency. Reliance is placed on the cases reported as “Muhammad Ramzan vs. Zafarullah” (1986 SCMR 1380), “Kazim Ali and others vs. The State and others” (2021 SCMR 2086), “Muhammad Kashif Iqbal vs. The State and another” (2022 SCMR 821), “Javed Iqbal vs. The State through Prosecutor General of Punjab and another” (2022 SCMR 1424) and recent order dated 30.09.2022 passed by the august Supreme Court of Pakistan
in Criminal Petition Nos. 1086-I & 1143-I of 2022 titled as “ Naeem Qasir Sheikh & Muhammad Zaigham Ali v. The Sate”. In these circumstances, it is the Trial Court who after recording of evidence would decide about the guilt or otherwise of the petitioner. Nothing is to be recovered from the petitioner; therefore, no useful purpose would be served by sending the petitioner behind the bars.
10. For the above reasons, this petition is accepted and ad-interim pre-arrest bail already granted to the petitioner is confirmed subject to his furnishing fresh bail bonds in the sum of Rs. 100,000/- with one surety in the like amount to the satisfaction of learned trial Court.
11. Before parting with this order, I deem it necessary to observe that the observation made hereinabove are tentative in nature and shall have no bearing on any of the other proceedings connected to this case.
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