SHOAIB KHAN vs THE STATE

ORDER

' Through this petition, petitioner has sought post-arrest bail in a case registered against him vide F.I.R. No,163, dated 9-5-1995 under section 302/ 460/109/34, P.P.C. At Police Station Gulgasht, Multan.

2. Brief facts of the case are that on 9-5-1994 at about 3-00 a.m. In the area of Basti Kalru, Multan, two persons trespassed in the house of Riaz Ahmad complainant. When they went to the courtyard of the house, Ahmad Yar deceased who was sleeping there along with family members, woke up and grappled with one of them. His companions in order to rescue him, fired at Ahmad Yar with pistol hitting on the front and back of chest. Riaz Ahmad complainant, his brother Shabbir Hussain and his cousin Muhammad Aslam, who were sleeping on the roof of the house meanwhile came down. Seeing them coming, one out of two intruders tried to scale over the western wall of the house, but he was caught by Muhammad Aslam P.W. Meanwhile the other intruder climbed over the wall and fired at Riaz Ahmad complainant, but he was not hitted. As a result of this move, he succeeded in getting his companion rescued from Muhammad Aslam and both ran away.

However, while they were scaling over the wall, Riaz Ahmad complainant had given a Sota blow to one of them. On receipt of said information about the occurrence, Inspector/S.H.O., Police Station Gulgasht, Multan, reached the spot and recorded the statement of Riaz Ahmad complainant. On the basis of this statement, the above-mentioned F.I.R. Was registered.

2. On 25-5-1994, S.H.O. Recorded the statements of Ahmad Bakhsh and Muhammad Nawaz, before whom Shoaib Khan (petitioner) had made extrajudicial confession. Petitioner allegedly stated before them that he along with Riaz, Ilyas, Tauqeer and Athar Ali Shah co-accused had gone to the house of Ahmad Yar deceased for committing theft. Riaz and Ilyas went into the house while he and two co-accused namely Tauqeer and Athar Ali Shah stayed outside the house at some distance. On the basis of above statement, police arrested Shoaib Khan petitioner along with Tauqeer, Athar Ali Shah and Abdul Sattar co-accused on 10-6-1994. Later on motor-cycle belonging to Shoaib Khan petitioner was seized having been used in the commission of crime.

3. It is argued by the learned counsel for the petitioner that the petitioner is not named in the F.I.R.

And only two persons were reported to have trespassed into the house of the complainant and had committed the occurrence; that the petitioner has not been put to any identification test; that only evidence against the petitioner is the alleged extra-judicial confession made before two persons on 25-5-1994, which itself is a weak type of evidence; that apart from the fact that so- called confession is entirely fabricated even the petitioner stood at some distance from the house along with three others namely Abdul Sattar, Athar Ali Shah arid Tauqeer and one of the co- accused who were standing with the petitioner at some distance from the house has been found innocent and discharged from the case, the case of the petitioner is one the same footing with that of the Athar Ali Shah co-accused who was admitted to bail by the trial Court and even the petition for cancellation against him was dismissed by the trial Court on 27-11-1994 and has requested for grant of bail on the basis of principles of consistency. Reliance is placed on 1980 SCMR 141, 1984 SCM R 530 and 1984 SCM R 206.

4. Learned counsel for the State as well as for the complainant opposed the contentions raised by the learned counsel for the petitioner. It is pointed out by the learned State Counsel that earlier bail application of the petitioner was dismissed on merits by my learned brother Abdul Majeed Tiwana, the then Judge, on 23-8-1994. Learned counsel for the complainant has submitted that trial of the case has been commenced and in view of this aspect the petitioner is not entitled for grant of bail.

Reliance is placed on 1980 SCM R 203. Both the counsel for the State and for the complainant have vehemently opposed the contentions raised by the learned counsel for the petitioner particularly on the ground that the earlier bail petition has already been dismissed on merits and there is no fresh ground available to the petitioner, to be considered at this stage.

5. I have heard the arguments advanced by both the sides and gone through the file. Admittedly the trial of the case has commenced. It will not be fair to go into discussion about the merits of the case at this juncture. Reliance is placed on Muhammad Ismail v. Muhammad Rafique and others PLD 1989 SC 585, Muhammad Sadiq and others v. The State 1980 SCM R 203, Allah Ditta and others v. The State 1990 SCM R 307 and Mian Dad v. The State 1992 SCM R 1418.

6. Although there is no bar in repeating bail petition but only on the fresh grounds. The words "fresh grounds" have been elaborately defined by the Honorable Supreme Court in the cases titled Saleh Muhammad v. The State reported in PLD 1986 SC 211 and The State v. Zubair and 4 others reported in PLD 1986 SC 163 that fresh grounds means grounds which did not exist at the time when first bail application was moved and if a ground was available to the accused but was not taken or pressed at the time when first bail application was filed, it cannot be considered as fresh ground of any subsequent bail application. In the case in hand, all the grounds on which the instant petition is repeated, were rightly available to the petitioner at the time of his earlier bail petition and were also considered by my learned brother Abdul Majeed Tiwana, the then Judge, while deciding the earlier bail application of the petitioner. Similarly the ground for bail on principles of consistency was also available to the petitioner before my learned brother Abdul Majeed Tiwana, the then Judge, but petitioner did not take this ground intentionally before the learned Judge, which tent amounts to waiver of aforementioned ground.

7. In view of the guidelines laid down by the Honorable Supreme Court of Pakistan, mentioned supra, the bail application of the petitioner is dismissed.