MST. JANNAT BIBI Versus MUHAMMAD BASHIR

ORDER

1. The petitioner has filed this petition under section 497(5) of the Cr.P.C. for cancellation of bail granted to Muhammad Bashir, respondent No. 1, by the learned Additional Sessions Judge vide order, dated 12-2-1997.

2. I have heard learned counsel for the petitioner, the State and respondent No. 1. Muhammad Bashir respondent No. l is an accused in the case registered vide F.I.R. No.369, dated 18-12-1996 for offence under section 337-F(1)(6) of the P.P.C. at Police Station Jauharabad, District Khushab. He filed an application for grant of bail which was dismissed by the learned Additional Sessions Judge on merits vide his order, dated 22-1-1997. The relevant part of the order reads as under:--

2. "I have heard the arguments and perused the record. The complainant is a wife of the accused petitioner, therefore, the chances of false implication are very remote. The medical report and X-Ray present on the record shows that three metacarpal bones of the left hand of the complainant were fractured. It shows that the accused petitioner treated his own wife with cruelty. The challan against the accused petitioner has been submitted in the Court of Illaqa Magistrate and the trial is in progress. In my view if the accused petitioner is enlarged on bail he will tamper (with) the prosecution evidence, and the apprehension shown by learned counsel for the complainant in this respect appears to be genuine. The petitioner is behind the bars for a period of about 10 days, therefore, I am of the view that at this early stage of the case the accused petitioner is not entitled to the concession of post-arrest bail. "

3. Just after 20 days the same learned Judge granted bail to respondent No. 1, vide order, dated 12-2-1997. The relevant part of the order reads as under:--

4. "I have heard the arguments and perused the record. The injured/complainant is admittedly wife of the accused-petitioner. The marriage bond between them still exists. The petitioner is behind the bars for a period of one month. The alleged offence does not fall within the prohibitory clause of section 497, Cr.P.C. In my view the petitioner is behind the bars for a sufficient period so in the given circumstances I admit him to bail subject to furnishing of bail bonds amounting to Rs.50,000 with one surety in the like amount to the satisfaction of the learned trial Court/Ilaqa Magistrate."

5. It is strange that despite knowledge of dismissal of the previous bail petition by him and in the absence of any new ground the same learned Additional Sessions I Judge ventured to allow bail to respondent No. 1. The bail granting order appears to be plainly illegal and in violation of the rule laid down in Zubair's case PLD 1986 SC 173. The relevant part of the judgment reads as under:--

6. "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 I 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 mean 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 appellant's counsel before him and that the same had not found favour with him. It may be pointed out with great respect 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."

7. The question whether the learned Additional Sessions Judge had allowed bail due to some ulterior motive can be probed into on the administrative side but one thing is clear that he has acted in violation of the principles and law laid down by the superior Courts in matters relating to grant of bail.

3. For the foregoing reasons, this petition is accepted and order, dated 12-2-1997, whereby bail was granted to respondent No. l by the learned Additional Sessions Judge is set aside and his bail is cancelled. He shall be taken into custody by the police forthwith and sent to the judicial lock-up.

8. N.H.Q./J-24/L ???????????????????????????????????????????????????????????????????????????????????????????????? Bail cancelled.