1. ' SYED SAJJAD ALI SHAH, J.--- Through this application under section 497(5), Cr.P.C. The applicant/complainant seek, the cancellation of to accused/respondent namely Abdul Bari by the Additional Sessions Judge, Kashmore vide his order, dated 3-3-2005 in. Sessions Case No,8 of 2002, Crime No,238 of 2001 under sections 302, 506/2, 147, 148, 149, 337-H(2), P.P.C. And 13 D.A.O. Of Police Station Kashmore.
2. ' The facts for the purposes of deciding this application are that applicant/complainant on 19-12- 2001 lodged a report with Police Station Kashmore stating therein that he along with his brother Muhammad Hashim and his father were present at home whereas his uncle Ali Murad had come to greet Eid. While they were chatting, they heard a call, whereupon the complainant, his brother Muhammad Hashim, father Muhammad Hassan and uncle Ali Murad came out of the house and saw Abdul Bari, Bashir Ahmed, Shah Bux, armed with guns, Abbas armed with rifle and Abdul Razzak with hatchet, asked Muhammad Hashim as to why he passed by their house as they had stopped him from passing by their house. Saying so, accused Abdul Bari fired from his gun at Muhammad Hashim with the intention to kill which hit him on his chest and he fell down, thereafter remaining accused fired with their guns at Muhammad Hashim which hit on his chest, right side of abdomen and right hand. When we asked not to kill innocent man they pointed their weapons towards the complainant party and directed them not to come near else they would be murdered. Muhammad Hashim died on the spot and the accused persons flayed away while firing in the air. The complainant thereafter left his father and uncle Ali Murad over the dead body of his brother Muhammad Hashim and came to police station for lodging the report.
3. ' After the afore-mentioned incident, respondent/accused absconded and after almost three years on 14-12-2004, he surrendered himself before the trial Court by moving a bail application but it did not find favor with the Additional Sessions Judge, Kashmore for the reasons as find mentioned in the operative part of his order, dated 18-12-2004 which is reproduced hereinbelow for the sake of convenience:- "I have given my careful consideration to the arguments advanced by Advocates of the concerned parties, and have gone through case-law relied upon by learned counsel for applicant/accused.
4. Admittedly the name of applicant/accused is transpired in the F.I.R. With specific role of firing from his gun at deceased which hit at his chest and he fell down. During course of investigation the applicant/accused could not be arrested by the police nor he himself surrendered before the police for investigation purpose nor he appeared before this Court and only on 14-12-2004 he surrendered himself before this Court. No doubt co-accused Bashir Ahmed had been granted bail by this Court vide order, dated 20-2-2Q,D2 but there is general allegations that co-accused Bashir Ahmed along with co-accused Shah Bux fired at deceased which resulted single lacerated punctured wound on abdomen of deceased and this injury in between accused Bashir Ahmed and Shah Bux. Accused Shah Bux had already let off by the police, but as per F.I.R. The present applicant/accused had fired from his gun at deceased which hit him at chest. The same injury was also confirmed by the Medical Officer in the post-mortem report. Since the applicant/accused had not joined investigation therefore, any incriminating article could not be recovered from his possession; hence the case of present applicant/accused is not identical to the case of co- accused. Moreover, the applicant/accused is son of co-accused Bashir Ahmed, therefore, he must be in knowledge of the registration of F.I.R. Against him and intentionally had not joined the trial. No doubt that refusal of bail to an absconder is not an absolute rule but in the present case, there is sufficient material available on record to connect the present applicant/accused with the commission of offence. P.W. Ali Murad and Muhammad Hussain have fully supported the version of the complainant and implicated the present applicant/accused in their 161, Cr.P.C. Statements. In view of above facts and circumstances, I am not inclined to grant the bail to applicant/accused, hence the bail application moved on behalf of applicant/accused Abdul Bari is hereby dismissed."
5. ' Second bail application on the same grounds was again moved before the same Judge who, vide his order, dated 3-3-2005, i,e, after three months of his first order accepted the bail application of the accused/respondent and released him on bail on the following consideration: "I have anxiously considered the arguments of learned counsel for the parties and have perused the material available on record so also case-law.
6. ' During course of investigation the applicant/accused could not be arrested by the police but on 14-12-2004 he surrendered himself before this Court. In a case of State v. Malik Mukhtiar Ahmed reported in 1991 SCM R 322, wherein it was observed, that the rule laid down by the Honourable Supreme Court regarding refusal of bail to an absconder is not an absolute rule and exception can always be made depending upon the circumstances of the case.
7. ' In the present case since bail has already been granted to co-accused Bashir Ahmed in this case.
8. In my view it is sufficient ground for making exceptions in the present case. The charge in the main case has been framed but the prosecution has failed to adduce their evidence. Learned counsel has submitted certified true copy of diary dated 12-1-2005 which shows that the -complainant is accused before the Court of learned Additional Sessions Judge, Kandhkot where he called absent.
9. As per F.I.R. Co-accused Bashir Ahmed was armed with gun and fired at deceased who hit him at his chest. Who has been granted bail by this Court vide order, dated 20-2-2002. The material on the record not showing as to which of accused caused fatal injury leaving room for consideration regarding common -intention of other accused to kill deceased. Reliance can be placed to 1980 SCM R 784.
10. ' Under the fact and circumstances discussed above, I am of the humble opinion that the present applicant/accused is also entitled for the concession of bail under the rule of consistency hence the applicant/accused is admitted to bail subject to furnishing solvent surety in the sum of Rs,3,00,000 three lacs and P.R. Bond in the like amount."
11. ' Learned counsel for the applicant/complainant has argued that neither any fresh ground was available to the accused before the trial Court in the second bail application nor it was pleaded, the trial Court therefore, could not have entertained the second bail application. It was further contended that the plea of the accused/respondent, that since bail has been granted to the co- accused Bashir Ahmed therefore, he is entitled to the concession of- bail on the ground of consistency was considered and rejected by the trial Court vide its order, dated 18-12-2004, therefore, it was not open for the trial Court to reconsider this plea and come to a different conclusion except for ulterior motives. It was next contended that, in accordance with the F.I.R., role assigned to- the accused/respondent Abdul Bari having caused straight fire at Muhammad Hashim with the intention to kill which hit him on his chest and he fell down therefore, the applicant was not entitled to the concession of bail. It was lastly contended that the accused/respondent remained absconder for a period of 3 years viz. From 19-12-2001, the date of incident, upto 14-12- 2004 when he had applied for bail before the trial Court, in the first order, dated 18-12-2004 the same trial Judge has held that since the accused/respondent is the son of co-accused Bashir Ahmed who was granted bail, therefore, he must have the knowledge of the registration of the F.I.R.
12. And he intentionally did not join the trial and therefore, he was not found entitled to the concession of bail whereas the same Judge in his second order, dated 3-3-2005 enlarged the accused/respondent on bail while finding the case of the respondent/ accused in the exception laid down by the Honourable Supreme Court to the effect that refusal of bail to an absconder is not an absolute rule and exception can always be made depending upon the circumstances of the case.
13. ' On the other hand, learned counsel for the accused/respondent initially on the basis of ground No,13 as pleaded in this application contended that the applicant/complainant was bound to move the trial Court in case the concession was misused by the respondent/accused, however, after arguing the matter at some length the learned counsel keeping in view the other grounds as agitated in this application, gave up this ground. It was next contended by the learned counsel for the accused/respondent that since the release of the accused on bail, two prosecution witnesses have been examined; therefore, the cancellation of bail at this stage is not appreciated by the Honourable Supreme Court, in the cases of Mian Dad v. The State 1992 SCM R 1418, Akmal Masih v.
14. Salamat Masih 1988 SCM R 918 and Mst. Irshad Begum v. Muhammad Afzar1985 SCM R 1691.
15. However, the learned counsel was not in a position to- deny that both the witnesses examined by the trial Court have fully supported the case of the prosecution. Learned counsel for the respondent/accused further was not able to satisfy as to whether after rejecting the bail application of the present accused the trial Court could have entertained the second bail application on the same ground, nor was able to place on record any fresh ground available to the accused/ respondent for moving second application before the same Court.
16. ' I have heard the learned counsel for the respective parties and have gone through the orders passed by the trial Court, the operative parts whereof have been reproduced above. A perusal of the aforesaid orders in juxta position would clearly reflect that no new ground for the grant of bail was either available, pleaded or discussed by the trial Court in its subsequent order, dated 3-3- 2005 and it appears that after reconsidering the same arguments/grounds which were rejected in its earlier order, dated 18-12-2004 and for obvious reason drew a totally contrary view and enlarged the accused/respondent on bail, which order is not only against all the judicial norms but without any justification, and without referring to the earlier order whereby the bail application of the present applicant was rejected. It is further in clear violation of the settled principle that the second bail application can only be entertained on the ground which were not available to the accused at the time of moving the first application as laid down by the Honourable Supreme Court in the case of the State v Zubair and 4 others PLD 1986 SC 173 in following terms:- "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."
17. ' Keeping in view the position as emerges from what has been discussed above, it is quite evident that neither the second bail application on the same ground was competent before the trial Court nor the second order, dated 3-3-2005 conforms to the judicial norm and obviously was for extraneous consideration, therefore, the principles laid down by the Honourable Supreme Court in the cases relied upon by the learned counsel for the respondent/accused are not attracted in the circumstances of the case.
18. ' These are the reasons for the short order, dated 18-8-2006 whereby to the respondent/accused by the trial Court vide order, dated 3-3-2005 was cancelled and the accused/respondent was remanded to the judicial custody. Needless to add that all the observations made hreinabove are tentative in nature and in no manner will prejudice the mind of the trial Court.
19. ' A copy of this order along with orders dated 18-12-2004 and 3-3-2005 passed by the trial Court, be sent to M.I.T. Who is directed to place the same before the Honourable Chief Justice for initiating disciplinary proceedings against. Mushtaque Ahmed Kalwar, Additional Sessions Judge, Kashmore.
20. Bail cancelled.