SYED MUHAMMAD KAZIM RAZA SHAMSI, J.---Amir Masih, petitioner by filing the petition in hand, seeks his release on post- arrest bail in case F.I.R. No,78 dated 26-2-2012 registered at Police Station Sundar, Lahore under sections 302 and 34, P.P.C.
2. At very out-set, the learned counsel for the complainant has raised an objection that earlier bail application filed by the petitioner was dismissed as withdrawn on 5-12-2012, therefore, in view of decision of the apex Court recorded on 3-1-2013 in Criminal Petition No,896-L of 2012 titled "Muhammad Siddique v. The State and another", second bail application is not entertainable unless and until any fresh ground is urged. The learned counsel further submitted that in the petition in hand, the petitioner has not canvassed any fresh ground for filing the second bail petition in respect of the same petitioner. He has also referred to the judgment of this court delivered in the case of "Noraz Akbar v. The State and another" (2011 PCr.LJ 852). It is the further submission of learned counsel for the complainant that it has become common practice that when the court is going to announce the order of dismissal of the petition, the petitioner usually withdraws the same for availing the second chance of the bail.
3. Meeting with the objections raised by learned counsel for the complainant, learned counsel for the petitioner has submitted that the judgment delivered by the apex Court supra has been recorded in case wherein High Court had allowed suspension of sentence by deciding petition filed under section 426, Cr.P.C. But the apex Court had recalled the concession of bail granted by this court, which principle is not applicable to the bail application filed under section 497, Cr.P.C. In this connection, the learned counsel has attempted to draw the distinction between the judgment and an order by referring to section 369, Cr.P.C. In order to strengthen his 'arguments on his point of applicability of section 369 Cr.P.C., the learned counsel has referred two cases i.e, "Gulzar Hassan Shah v. Ghulam Murtaza and 4 others" (PLD 1970 Supreme Court 335) and case of "Saleem Akhtar v.
The State" (PLD 1980 Lahore 127). The learned counsel has. Further argued that there is no bar for filing successive bail applications, if the earlier application is not decided on merits and the court's view had not taken any form in black and white on the file of the case. In this connection, he has referred to the cases of "The State through Advocate-General, N. W.F.P. v. Zubair and 4 others" (PLD 1986 Supreme Court 173), "Ali Hassan v. The State" (2001 SCMR 1047) "Muhammad Riaz v. The State"
(2002 SCMR 184) and "Muhammad Nasir and others v. The State and another" (2013 P Cr.L J 95).
4. While dilating upon the submissions made by learned counsel for the parties, the case-law cited at the bar has been examined minutely.There is no cavil to the proposition that the orders passed in the bail petitions are not judgments and also the same are not reviewable by the same court as is apparent from the wording contained in section 369, Cr.P:C. For convenience the provisions of said section is reproduced hereunder:-- "Save as otherwise provided by this Code or by any other law for the time being in force or, in case of a High Court by the Letters Patent of such High Court no Court when it has signed its judgment, shall alter or review the same, except to correct a clerical error."
This provision of law clearly restrains the Court from reviewing its own judgment and orders except if some clerical or typographical error is found therein. The judgment of the apex Court recorded in the case of Gulzar Hassan Shah supra has created an exception to this provision by observing that in rare and exceptional cases, the High Court has the inherent power to revoke, review or alter its own earlier decisions in cases which are not governed by sections 369, 424 and 430 Cr.P.C. With a view to give effect to any order under the Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. Perhaps, it is lurking in the mind of the learned counsel for the petitioner that withdrawal of the earlier bail application and filing the subsequent one may amount to the review of the order earlier passed by the court but it is not so. The case of Saleem Akhtar, supra, is in line with the ratio of Gulzar's case. From the facts and circumstances of this case, it is a clear -proposition that the orders passed by courts in the bail applications filed under section 498 or 497, Cr.P.C. Are not equal to the judgments which are the result of conducting full-fledged trial of a criminal case, by a court of law under the Code of Criminal Procedure, 1898. Nevertheless, this conclusion does not amount that orders passed while deciding bail petitions, could be altered or review, except in cases where clerical error is to be corrected.
5. Next proposition cropped up for consideration is whether underlying principles for exercising discretion under section 426, Cr.P.C. And 497, Cr.P.C. Are same and whether a petition under section 426, Cr.P.C. Can be decided on the principles linked with decision of a petition under section 497, Cr.P.C. This argument was made by learned counsel for the petitioner with reference to the latest view of the apex Court recorded in case of Muhammad Siddique, supra in which bail was granted to a convict under section 426, Cr.P.C. By this court but was recalled by the Hon'ble Supreme Court.
The answer to this proposition is simple and is contained in the judgment of the Apex Court_ recorded in case of "Mazhar Ahmed v. The State and another" (2012 SCMR 997). It was observed in the said judgment that the provisions of sections 497 and 426, Cr.P.C. Are analogous provisions and in the absence of any guideline, the principles which govern section 497, E Cr.P.C. May guide the exercise of discretion under section 426, Cr.P.C. In this connection, the case of "Shamshad Hussain v. Gulraiz Akhtar" (PLD 2007 Supreme Court 564) has been relied upon. So now the position has become clear that the principles guiding exercise of discretion under section 426, Cr.P.C. Are analogous and the principles can be borrowed from the provisions of section 497, Cr.P.C. While deciding petition under section 426, Cr.P.C.
5(sic) Coming to the next submission of .Learned counsel for the petitioner that after withdrawal of first bail application when it is not decided on merit's, filing of second bail application is not barred.
The apex Court in the case of Ali Hassan and Muhammad Riaz, supra, has held so; that filing of successive bail applications after withdrawal without decision on merits, is not barred but now things as well as circumstances around have been changed to great extent and counsel for complainant has rightly pointed out that when the court is going to announce an order of ,dismissal of the bail applications, petitioner abruptly makes a request for withdrawal of the bail application and then after sometime, he files the same through same counsel or through some other counsel. Sometimes he conceals fact of filing earlier petition and due to this lapse, petition is placed before Bench other than the Bench where from earlier application was withdrawn. This view as noted in judgments supra has been revisited by the Apex Court, in case of Muhammad Siddique, supra and had deprecated the practice of filing successive bail applications, Without disclosing any fresh ground or the circumstances which may have taken place after withdrawal of the first bail application, creating necessity for institution of the second one. This G view of creating bar for filing successive bail application was also taken by this court in case of Noraz Akbar supra.
This practice adopted by the litigants of withdrawing one petition and then filing the successive petitions has increased the workload upon the courts as each time, a new application which had already been dealt with by the court, is placed before it for decision. It has become the need of the day to curb this practice in order to save precious public time which may be consumed by the courts in deciding other matters: Respectfully, following the dictum of the apex Court laid down in the case of Muhammad Siddique supra, - I do not find any reason for entertaining this second bail petition filed by Amir Masih consequently the same is dismissed holding that the petitioner is not able to canvass any fresh ground or necessity for filing the second petition after withdrawal of first one.
6. In view of the above, the petition in hand is dismissed for the above said reasons.