MAQSOOD Versus State
ORDER
SADIQ MAHMUD KHURRAM, J. ---According to the certificate appended with the petition, this is the second bail petition filed by the petitioner under section 497, Cr.P.C., seeking post-arrest bail in the case FIR No 208 of 2019 dated 23.03.2019 registered at Police Station Kot Chutta, District Dera Ghazi Khan, in respect of offences under sections 376 and 496-A, P.P.C., before this Court. It is not questioned that the first petition (Crl. Misc. No.3093-B/2019) filed by the petitioner seeking the same relief was dismissed on merits from this Court vide order dated 28.05.2019 after the learned counsel for the petitioner had argued the case but had remained unable to persuade this Court to admit the petitioner to post-arrest bail.
2. The learned counsel for the petitioner was asked to assist the Court about the maintainability of the instant petition as apparently there is no fresh ground as the earlier bail petition of the petitioner was declined on merit and all the grounds were considered and had not found favour with the Court. The learned counsel for the petitioner submitted that in the investigation conducted in the case subsequent to the order passed by this Court on 28.05.2019, the petitioner had been found innocent.
3. The learned Deputy Prosecutor General vehemently opposed the bail petition and submitted that no fresh ground has been raised in the instant petition, hence the petition is not maintainable. The learned Deputy Prosecutor General submitted that the earlier order of this Court dated 28.05.2019 has exhaustively been dealt with all the grounds, which were raised in the first bail petition and the bail was declined on merit.
4. I have heard the learned counsel for the petitioner, the learned Deputy Prosecutor General and perused the record with their able assistance.
5. A perusal of the record would reveal that this Court has already rejected the bail application filed on behalf of the petitioner on merits on 28.05.2019. The record reveals that the instant second bail application was filed on behalf of the petitioner after the rejection of his earlier bail application. The learned counsel for the petitioner submitted that in the investigation conducted in the case subsequent to the order passed by this Court on 28.05.2019, the petitioner had been found innocent. The perusal of the record reveals that in the investigation conducted in the case subsequent to the order passed by this Court on 28.05.2019, the case of the petitioner was not considered rather the investigation was conducted with respect to the allegations against the co-accused Muhammad Ibrahim and Muhammad Ayyub. No investigation was conducted nor was any finding given by the Investigating Officer regarding the guilt or innocence of the petitioner during the investigation conducted in the case subsequent to the order passed by this Court on 28.05.2019. Hence, the contention of the learned counsel for the petitioner is patently untenable. This Court has already rejected the first bail application filed on behalf of the petitioner after having considered the prosecution case and over all facts and circumstances of the case on merits and as such in my humble view the instant second bail application, from face of it is misconceived, as admittedly there is no fresh ground available to the applicant to file the instant second bail application. Reference can be made to the case of The State through Advocate General, N.-W.F.P. v. Zubair and 4 others (PLD 1986 SC 173) wherein the august Supreme Court of Pakistan has held that:--
"It might be useful to mention here that the second or the subsequent bail application to the same Court shall lie only on afresh 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 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 applicant's counsel before hire and that the same and 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. We are of the view that in the present case the learned Judge who dealt with the second bail application had in fact embarked on a review of the order of the learned Judge in fact, embarked had earlier dismissed the first bail application."
There is no cavil to the proposition that dismissal of a bail petition coordinates with collapse of all the grounds available then, making it obligatory, for the petitioner search for a fresh ground, not available to him earlier and having arisen subsequent to the earlier order of to dismissal, so as to move a second or subsequent bail application(s). The perusal of this petition reveals no such fresh ground which was not available to the petitioner at the time of earlier order of dismissal. Thus by placing reliance on the cases of Nazir Ahmed and another v. The State and others (PLD 2014 SC 241) and Muhammad Aslam v. The State and others (PLD 2015 SC 41) this petition, being not maintainable, is dismissed.
ADN/M-15/L Bail refused.