ZUBAIR AHMAD KHAN vs THE STATE
The petitioner sought post-arrest bail in a case registered under sections 302, 324, 109, 34, 148, and 149 of the Pakistan Penal Code 1860, arising from F.I.R. No. 421 at Police Station Saddar Pakpattan Sharif. The core legal question was whether a second post-arrest bail petition is maintainable on grounds that were already available when the first bail petition was dismissed as not pressed, and whether the petitioner was entitled to bail on merits. The Lahore High Court held that the petition was not maintainable as the petitioner's earlier bail application was dismissed as not pressed, and grounds available at that time cannot be re-urged subsequently, relying on the principle in The State v. Zubair and another (PLD 1996 SC 173). Furthermore, the court noted that the petitioner was the main accused, charged with an offense under the prohibitory clause of section 497 of the Code of Criminal Procedure 1898, with a weapon recovered at his instance, and found guilty across four successive police investigations. The key principle laid down is that a subsequent bail application cannot be entertained on grounds that were available during the withdrawal of a prior bail petition.
- Can a subsequent post-arrest bail petition be maintained on grounds that were already available when the first bail petition was dismissed as not pressed?
- Does the withdrawal of a bail petition as not pressed create an embargo against raising the same grounds in a subsequent bail application?
- Is an accused entitled to post-arrest bail when named as the main culprit in multiple successive police investigations and connected with a weapon recovery for an offense falling within the prohibitory clause?
- Section 302, Pakistan Penal Code 1860
- Section 324, Pakistan Penal Code 1860
- Section 109, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
ORDER
'TARIQ SHAMIM, J.--The petitioner seeks post-arrest bail in case F.I.R. No,421 dated 16-6-2006 for offences under sections 302, 324, 109, 34, 148 and 149, P.P.C, registered at Police Station Saddar Pakpattan Sharif.
2. It has been noticed that the earlier bail application filed on behalf of the petitioner and other co- accused was heard and decided by this Court on 23rd of June, 2008. The learned counsel appearing on behalf of the petitioner in the said petition at the very outset did not press the petition to the extent of the petitioner and to his extent the petition was dismissed, however, the other petitioners/co-accused were allowed bail by this Court.
3. The learned counsel for the petitioner states that the learned counsel who had filed the earlier petition on behalf of the petitioner and others, which was decided by this Court through the aforesaid order, should not have made the statement regarding non-pressing of the petition to the extent of the petitioner as he was entitled to the same on merits. He has further argued that the petitioner is not named in the F.I.R, that he has been falsely implicated in this case by the complainant and that there is no direct evidence of involvement of the petitioner in the crime.
4. Conversely, the learned Deputy Prosecutor-General assisted by the learned counsel for the complainant has stated that after dismissal of the earlier bail application of the petitioner as being not pressed, no fresh grounds have been urged by the learned counsel before this Court in support of the instant petition that the petitioner is the main accused, who in four successive investigations was found to be implicated in the case by the police; that weapon of offence i.e, 12 bore gun was recovered from his possession in the course of investigation and that challan in the case has been submitted in the Court to the extent of the petitioner therefore, he is not entitled to the concession of bail.
5. I have heard the learned counsel for the parties and perused the record.
6. The petitioner's earlier bail application was dismissed on 23-6-2008. The grounds urged by the learned counsel on behalf of the petitioner cannot be considered at this juncture as the same were available to him when his first bail application was dismissed as being not pressed. The case of, The State v. Zubair and another (PLD 1996 SC 173) places a complete embargo against such a contention. Even otherwise, from the record available in the Court, it is evident that the petitioner is the main accused. He has been charged with an offence which attracts the prohibitory clause of section 497, Cr.P.C. The weapon of offence i.e, .12 bore gun has also been recovered at his instance.
In four successive investigations, the petitioner has been found to be fully implicated in the crime and consequently challan in the case has been submitted and the trial is in progress.
7. For what has been stated above, there is no merit in this petition which stands dismissed.