NAVEED IQBAL Versus State
ORDER
KHADIM HUSSAIN M. SHAIKH, J.--- Through this application, the applicant has sought for his release on bail in case based on FIR No. 219/2013 under sections 302, 34, P.P.C., Police Station, Taimoria, after his bail plea was rejected by the learned IInd Additional Sessions Judge, Karachi Central twice i.e. earlier vide order dated 30.11.2015 and subsequently vide order dated 29.03.2016, by dismissing his bail applications.
2. The prosecution case in nutshell is that on 30.05.2013, complainant Shaikh Farrukh Ilyas, lodged his FIR at Police Station Taimoria, stating therein that on that fateful day at 7.45 p.m., he was available in his house, when neighbor of his sister namely Nadeem came and informed him that his brother-in-law Shaikh Waseem Ahmed and his sister Aniqa, having been fired at, are lying injured in their house. The complainant along with his wife immediately reached to the house of his sister i.e. Flat No.B/ 36, United Apartment, Block M, where he came to know that their neighbor Naveed Iqbal son of Javed Iqbal resident of Flat No. A/21, United Apartment, Block M, North Nazimabad Karachi due to some annoyance at 7:30 p.m., by entering into the flat of the complainant's brother-in-law and making fires from his T.T. Pistol, had seriously injured complainant's sister and brother-in-law, who were taken to Abbasi Shaheed Hospital, the complainant then went to Abbasi Shaheed Hospital, where he saw his sister Aniqa aged 30/32 years lying dead and his brother-in-law Shaikh Waseem Ahmed aged of about 40/42 years was in operation theatre in a very critical condition, who subsequently also died. After the investigation, applicant/accused Naveed Iqbal was sent up with the challan to face his trial.
3. Learned counsel for the applicant has mainly contended that the applicant is innocent and he has been falsely implicated by the complainant in this case; that the complainant is not an eye-witness of the occurrence; that there is only extra judicial confession of the applicant/accused, which, per him, is inadmissible in evidence; and, that the case requires further enquiry into the guilt of the applicant/accused. He, therefore, prays that the applicant may be enlarged on bail.
4. The learned advocate for the complainant has contended that the name of the applicant/accused is mentioned in the FIR with specific role of committing murders of two persons namely Aniqa and Shaikh Waseem Ahmed by firing from his T.T. pistol at them; that the prosecution witnesses in their statements under section 161, Cr.P.C. have also implicated the applicant/accused; and, that the applicant filed second bail application before the learned trial Court after dismissal of his first bail application on merits without any fresh ground. He, therefore, prays that the bail application may be dismissed. The learned A.P.G. adopted the arguments of the learned counsel for the complainant.
5. I have considered the arguments advanced by the learned counsel for the applicant, learned advocate for the complainant and learned A.P.G. and have gone through the material available on record.
6. Admittedly, the name of the applicant Naveed Iqbal does find place in the FIR with specific role of firing from his T.T. Pistol at Mst. Aniqa and Shaikh Waseem Ahmed, who both succumbed to their injuries and died; that the applicant is sole nominated accused in this case involving double murder; that the PWs have also implicated the applicant in their statements under section 161, Cr.P.C.; that the crime weapon was also recovered from the applicant; and, thus there is prima-facie evidence to connect the applicant with the subject crime, falling within the prohibitory clause of section 497, Cr.P.C., which disentitles him to the grant of bail. Moreover, the learned trial Court had already rejected the first bail application filed on behalf of the applicant after having considered the arguments of the learned counsel, prosecution case and over all facts and circumstances of the case on merits, and there was no fresh ground for moving second bail application and as such in my humble view the second bail application, manifestly was misconceived and not entertainable. Reference can be made to the case of The State v. Zubair and 4 others (PLD 1986 SC 173), wherein the Hon'ble Supreme Court of Pakistan has held that:-
"8. 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 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 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 are 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 who had earlier dismissed the first bail application."
In case of Muhammad Riaz v. The State (2002 SCMR 184), the Hon'ble Supreme Court of Pakistan has held that:-
".......the situation would be different if the earlier bail application was decided on merits and in such case while deciding the subsequent bail application, of course, the ground which was not urged although the same was available would not constitute a fresh ground justifying the filing of second bail application."
7. In view of what has been stated above, I am of the considered view that the applicant Naveed Iqbal has failed to make out his case for grant of bail. Accordingly, the bail application in hand is liable to be dismissed.
8. Above are the reasons of short order announced by me on 14.12.2016, whereby the bail application was dismissed.
9. Needless to add that the observations made hereinabove, are tentative in nature only for the purpose of deciding bail application, and the learned trial Court shall decide the case on merits without being influenced by the aforementioned observations.
JK/N-23/Sindh Bail refused.