MUHAMMAD AKRAM Versus State
This matter concerns a second application for post-arrest bail filed by the petitioner, who stands accused of murder under sections 302 and 34 of the Pakistan Penal Code 1860. The petitioner, having previously had a bail application dismissed, sought relief on the grounds that he was not named in the initial F.I.R. and that his role was limited to firing in the air, alongside claims regarding the investigation process and the length of his incarceration. The core legal question was whether a second bail application could be entertained based on arguments that were available but not raised during the hearing of the first bail application. The Court dismissed the application, holding that grounds available at the time of the first bail hearing, which were either not taken or not argued, cannot be re-agitated as fresh grounds in subsequent applications. The Court further noted that the recovery of the weapon of offence prima facie connected the petitioner to the crime, which fell within the prohibitory clause of section 497 of the Code of Criminal Procedure 1898.
- Can a second bail application be entertained based on grounds that were available but not argued during the first bail application?
- Does the recovery of a weapon of offence prima facie connect an accused to the crime for the purpose of bail?
- Does an offence under section 302 of the Pakistan Penal Code 1860 fall within the prohibitory clause of section 497 of the Code of Criminal Procedure 1898?
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
ORDER
SYED SHABBAR RAZA RIZVI, J.--- Petitioner filed this application for post-arrest bail. The petitioner stands implicated in F.I.R. No.188 of 2004 dated 13-5-2004. The said F.I.R. was registered under sections 302 and 34, P.P.C. Police Station Saddar, Pattoki, District Kasur.
2. Briefly, according to the F.I.R., the instant F.I.R. was registered on statement of Mst. Sardaran Bibi. According to the complainant, on the night of 12/13 May, 2004 the complainant and other members of the family were attacked by accused Nasrullah armed with .12 bore, accused Rustam Ali armed with .30 bore pistol; accused Rustam Ali raised Lalkara, followed by a fire by accused Nasrullah which hit complainant's mother Inayat Bibi on her right leg who, later on, succumbed to the injuries. Earlier criminal Misc. No.3870-B of 2005 was filed by the petitioner which was dismissed by me on 21-6-2005.
3. The learned counsel for the petitioner has filed this second bail application on the ground that certain facts were not submitted before this Court correctly and the Court was also not assisted appropriately. Learned counsel submits that petitioner was not named in the F.I.R.; he was named subsequently in a supplementary statement. He submits that role attributed to the petitioner in the supplementary statement is firing in the air. According to him different sets of accused are mentioned in the F.I.R. and the supplementary statement. He further submits that several investigations have been conducted out of which only two I.Os. declared the petitioner's presence at the scene of occurrence. He submits that no empty of pistol was recovered. He submits that petitioner has already served 1-1/2 years in the prison yet trial has not been concluded.
3-A. On the other hand, learned counsel for the state submits that grounds taken by the learned counsel for the petitioner were available on 21-6-2005, at the time of arguments in the first bail application. He submits that no fresh ground is available to the petitioner. He submits that recovery of weapon of offence has been effected.
4. It is a common knowledge that if a ground was available at the time of arguments in the first bail application but it was not taken or argued, it cannot be construed or argued as a fresh ground at the time of arguments in the second or subsequent bail application. Therefore, if any argument was not offered or missed out by the learned counsel arguing first bail application, it cannot be advanced or submitted while arguing the present bail application. The recovery of weapon was effected from the petitioner; this fact prima facie connects the petitioner with the commission of offence. The offence alleged against petitioner also falls within the prohibitory clause of section 497, Cr.P.C.
5. Therefore, in view of the above reasons, this second bail application is dismissed.
H.B.T./M-228/L ????????????????????????????????????????????????????????????????????????????????????????????? Bail refused.