MUHAMMAD HANIF Versus State
This matter concerns a post-arrest bail petition filed by the accused, Muhammad Hanif, in a murder case registered under sections 302/109/34 of the Pakistan Penal Code 1860. The petitioner sought bail on the ground of alibi, claiming he was not present at the scene of the crime, supported by affidavits. The prosecution opposed the petition, arguing that the petitioner had previously filed a bail application which was dismissed, and that the current grounds were either raised or available during the previous proceedings, rendering the petition not maintainable. The Court observed that the plea of alibi was indeed available to the petitioner during the previous bail application. The Court held that grounds which were raised or were available to be raised in a previous bail petition, but were not, are deemed to have been adjudicated upon and rejected. Consequently, the Court ruled that no fresh grounds existed to justify the grant of bail and dismissed the petition, reaffirming the principle that successive bail applications cannot be entertained on previously available grounds.
- Whether a successive bail application is maintainable on grounds that were available but not raised in a previous bail petition?
- Does the principle of res judicata apply to successive bail applications in criminal proceedings?
- Can an accused be granted bail on grounds of alibi if that specific ground was available during the hearing of a prior bail application?
- Section 497, Code of Criminal Procedure 1898
- Section 302, Pakistan Penal Code 1860
- Section 109, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
ORDER
ALI BAIG, J. ---Petitioner namely Muhammad Hanif has filed the instant bail petition under section 497, Cr.P.C. for grant of post-arrest bail in case FIR No.02/2019 dated 07-01- 2019 registered under sections 302/109/34, P.P.C. at Police Station City Gilgit.
2. Briefly allegations against the petitioner/accused are that the petitioner/accused and his co-accused have committed murder of one Shah Alam at suspension bridge situated at Konodas Gilgit by opening fire on him with Pistol with intention to kill him. After committing of murder of the deceased, the present petitioner/accused as well as his co-accused namely Fazal Haq decamped/fled away towards Pull Road Gilgit. The complainant and his companions rushed towards the deceased who was fallen down on the suspension bridge and found that the deceased was succumbed to his injuries. Motive behind the occurrence was stated to be old enmity between the parties.
3. It is pertinent to mention here that earlier the petitioner/accused had filed bail petition in this court, which was dismissed, by this court vide bail order dated 27-9-2019 and the petitioner has filed the instant bail petition on some fresh grounds.
4. The learned counsel appearing on behalf of the petitioner/ accused contended that at time of the occurrence the petitioner/accused was not present at the place of occurrence rather the petitioner was present in a hotel in front of Chief Court Gilgit along with one Abdul Shukoor and in this respect Abdul Shukoor and Muhammad Nazir had filed affidavits in the trial court. The learned counsel for the petitioner/accused further argued that site plan has been prepared by Investigating Officer (I.O.) on the pointation of the complainant namely Abdul Rashid and he has not disclosed that the present petitioner/accused was present at the place of occurrence, at the time of occurrence, hence the petitioner is entitled for concession of bail.
5. On the other hand the learned Dy. Advocate General and the learned counsel for the complainant opposed this petition by contending that the grounds agitated by the learned counsel for the petitioner/ accused were agitated during arguments on the previous bail petition, hence no fresh grounds are available to the petitioner and the present bail petition of the petitioner/accused is not maintainable and liable to be dismissed.
6. I have carefully considered the submissions made by the learned counsel for the parties and perused the record with their able assistance.
7. Admittedly, the petitioner/accused has filed the instant bail petition on the fresh ground that the petitioner/accused was not present at the place of occurrence, at the time of occurrence. From perusal of previous bail order passed by this court on 27-9-2019 it reveals that the learned counsel for the petitioner/accused had agitated the aforesaid ground in his arguments on the previous bail petition as this ground was available at the time of filing and deciding of previous bail petition of the petitioner/accused.
8. It is settled principle of law that grounds which were raised by the learned counsel for the petitioner/accused in previous bail petition or which were available to him, but were not raised would be deemed to have been raised and rejected, thus no fresh ground is available for grant of bail to the present petitioner/accused and petitioner/accused is not entitled for concession of bail.
9. The upshot of above discussion is that, finding no force in the instant bail petition it is hereby dismissed and prayer for grant of bail is declined. File.
ADN/25/GB Bail refused.