MALIK HAQ NAWAZ, J.---The petitioner has been booked for the offence under section 302, P.P.C.
Vide FIR No, 25/2014 registered at Police Station City, Gilgit.
2. The details of occurrence as narrated by the complainant Rehmat Azam, father of deceased "Anas" through a written application addressed to the SHO Police Station City Gilgit are as under:- "That on 28.3.2014, when after offering Juma prayer, at Tableeghee Markaz Konodass, he came to know that his son "Anas" while coming back after taking a paper in "Read Foundation" has been murdered at domial at about 1330 hours. The postmortem of deceased was in progress. The complainant was informed that his son after appearing in examinations was coming back with one Asif son of Akhtar Jan resident of Konodass. The complainant stated that he has no enmity with any one and the culprits be traced and should be brought to justice."
3. After registration of case the investigation started and after completion of investigation the accused/petitioner was committed to judicial lockup.
4. The interesting episode started hereafter, when the accused filed first bail application before the trial Court on 15.08.2014, which was dismissed. The'second bail petition before the trial Court on 21.02.2015, third bail petition on 13.05.2015 and the fourth one on 31.05.2016. The petitioner filed first bail application before this Court on 30.06.2015, which was dismissed on merits and again he tried his luck by submitting a second bail application which was also declined vide order dated 28.10.2016. It is pertinent to mention here that both these bail petitions were placed before two different Hon'ble Judges of this Court, which practice was also contrary to the law laid down in PLD 1986 SC 173, which though later on revisited by the Hon'ble Supreme Court of Pakistan but the basic principles were not reviewed and remained undisturbed.
5. The learned counsel for the petitioner in third round of bail petition submitted that he has only one fresh ground that recovery witness namely Ali Amber son of Badshah Jan examined as PW-6 in the trial Court on 07.05.2016 has not supported the prosecution case and, thus the case of the petitioner has become the case of further inquiry and he deserve to be released on bail. In support of his contention the learned counsel relied on PLD 2012 Sindh 225, 2004 PCr.LJ 167, 1982 SCMR 153, 2007 PCr.LJ 1542, 2009 PCr.LJ 527, 2010 MLD 212, 1999 MLD 978, 2001 PCr.LJ 124, 2012 YLR 2568, PLD 2013 Pesh. 120, 2013 PCr.LJ 1318.
6. On the other hand, the learned Dy. A.G, assisted by counsel for the complainant stated at bar that earlier two bail applications of the petitioner were dismissed after considering each and every available ground and no fresh ground was available to the petitioner. The learned Dy. A.G, further submitted that the case in hand is a classical example of misuse of provisions of section 497, Cr.P.C., and there should be some restrictions to move such false and frivolous applications which only result in wastage of precious time of Court and general public.
7. I have heard the arguments of both, the sides and have also gone through the judgments (04) in numbers of the trial Court and (02) judgments of this Hon'ble Court which were handed down my learned brother justice Muhammad Alam and, the other one by my learned brother justice Yar Muhammad and in both of these petitions, all the available grounds were taken and exhaustively discussed. Both the earlier petitions were disposed of and a perusal of both these judgments shows that these were rendered after due application of judicial mind and are full of judicial wisdom. There was hardly any fresh ground available to the accused for moving a fresh bail application on fresh grounds.
8. As stated supra, it was an erroneous attempt by the office staff who placed the second bail application before another Judge. Second and successive bail applications as a matter of principle are always placed before the Judge, who decided the earlier bail application to avoid conflicting decisions, and record or subsequent application by another Judge would tantamount to embark on review of orders of Judge, who passed or dealt with earlier applications of the same accused in the same case. There are two celebrated judgments of the Hon'ble Supreme Court of Pakistan, which have laid down the principle to be followed, when a fresh bail application is filed by the same accused of the same case. It has been held in first judgment reported in PLD 1986 SC 173.
(f). Subsequent bail application....Second or subsequent bail application by same accused in same case heard or dealt with by a Judge other than the one who had heard previous bail application, held, would tantamount to embark on a review of order of Judge who had earlier dealt or decided first bail application---- Practice disapproved by Supreme Court."
The second renowned judgment is reported in 2002 SCMR 184, which re-affirmed the views and principles enunciated in earlier judgment quoted supra. The relevant citation is as under:- (c). Bail.... Decision of first and subsequent application by the same Judge---- Supreme Court disapproved the practice of withdrawing bail application from one Judge and then making a fresh application soon :hereafter, so that it might be dealt with by another Judge.... Subsequent bail application must be placed before the same Judge, who had dealt with the first bail application."
(d). Bail....Second or successive bail applications Practice of filing successive bail applications in the same case either by same accused or his Co-accused and getting it fixed before a different Judge would result in conflicting judgments and encourage malpractice by accused persons to bring the judicial system into disrepute.... Conflicting order given by another Judge in subsequent application might give rise to a false impression that second order was based on extraneous considerations."
(f). Bail.......... Subsequent bail application Fresh ground---- Ground not urged even though available at the time of earlier bail application, which was decided on merits, would not constitute a fresh ground justifying the filing of second bail application."
9. A careful study of above law cases cited at, reveals that some principles have been enunciated for moving a fresh bail application on availability of a fresh ground, which principles are admitted and not denied but at the same time each and every criminal case has its own facts and circumstances. The criminal cases are decided according to their own peculiar circumstances and not on the strength of precedents, which are only meant up to the extent of that very case, unless and until a question of law is discussed and decided.
10. As well as the merits of the case are concerned it is observed again at the cost of repetition that the provisions of section 497, Cr.P.C., have been misused in a flagrant manner as (04) four bail applications were moved and dismissed by the trial Court and third one is today before this Court for disposal and that too on merit, without availability of any fresh ground. If a ground was available and not taken, when first bail application was moved, it cannot be taken or considered in a subsequent bail application.
11. The nutshell of above discussion is that the petition is dismissed being meritless.
12. The office is strictly directed to follow the judgment in letter and spirit and Assistant Registrar (Judicial) will ensure that in future, all the subsequent bail applications are placed before the same Judge, who decided the earlier one, however in case of any difficulty, if any Judge is not available on bench or have been retired from service, the office will place the matter before the Hon'ble Chief Judge for appropriate orders.