KHADIM HUSSAIN M. SHAIKH, J.---By this order I intend to dispose of the instant criminal bail application based on FIR No,02/2014 for offence under Sections 6, 9 (C), 14, 15 CNS Act 1997 of Police Station ANF Clifton Karachi, which has been repeated directly before this Court on behalf of the applicant Muhammad Mubeen Khan after his earlier bail application bearing Criminal Bail Application No,545/2014 was rejected by this Court vide order dated 09.12.2015, after the bail plea of the applicant was declined by the learned trial Court vide order dated 28.3.2014.
2. Learned counsel for the applicant has mainly contended that while passing the order dated 09.12.2015, rejecting the earlier bail application of the applicant, this Court had not considered some of the grounds shown therein, per him, each and every ground shown in the bail application has to be considered and dealt with separately. He, therefore, prays that the bail plea of the applicant may be reconsidered. He, however, places his reliance on case of Raja Muhammad Akram Khan v. Mazhar lqbal and 2 others (2004 PCr.LJ 935).
3. Conversely, learned Special Prosecutor for ANF has contended that this Court has already considered all the grounds, urged by the learned counsel for the applicant at the time of hearing of his earlier bail application; and, that there is no fresh ground for repeating the bail application on behalf of the applicant. He, therefore, prays that this second bail application may be dismissed.
4. I have considered the arguments advanced by the learned counsel for the applicant as well as the learned Special Prosecutor for ANF and have gone through the material available on record.
5. For the sake of convenience the relevant paragraphs of the order dated 09.12.2015, passed by this Court, whereby the bail application earlier filed on behalf of the applicant Muhammad Mubeen Khan was rejected, are reproduced below:- "The perusal of the record shows that in this case recovery of 85 (eighty five) K.Gs of heroin powder was involved which was found concealed in the crates declared to contain Oranges and were being shipped overseas to Malaysia. From the statements of the witnesses and the other material collected during the investigation, it appears that applicant M. Mubeen Khan was attributed the role of organizing the shipment for which he was alleged to have detailed different people with various assignments to materialize it and himself oversaw the requisite arrangements from obtaining E-Form to buying the Oranges, storing, packing, stuffing and transporting them as elaborated by the learned Special Prosecutor. As to the contention of the learned Advocate, that the pieces of evidence collected by the prosecution against applicant M.
Mubeen Khan were either inadmissible or of no much credence, no definite or detailed finding can be recorded thereon at this stage as the case in the midst of trial and any such finding would prejudice the case of either side. There ' is no cavil with the propositions laid down in the cases cited by the learned Advocate but it has been consistently held by the superior Courts that each case has to be dealt with in the light of its own peculiar circumstances. Indeed in the cases of the present nature, the offenders act in an organized manner in tandem with each other which has been noticed by the superior Courts in several cases with a note of caution to deal with them dynamically. Reference in this context can be made to the case reported as 2010 SCM R 27 (Ismaeel v. The State) in which it was observed as follows:-- "We may observe that the Courts cannot expect in the case of smuggling of narcotics, the evidence of the nature, which is normally available in an ordinary criminal case as the persons who indulge in such type of notorious activities are more organized and influential having deep rooted contacts within the country and outside the country because they have connections all over the world, therefore, they are always in position to manage to cause dents in the case and evidence of the prosecution. The standard of proving the case under special law is different in case of the special law is read as a whole while comparing with the general law It is a settled principle of law that special law excludes the general leave as law laid down by this court in Ziaur Rehman's case PLD 1973 SC 49 and Mian Muhammad Nawaz Sharif's case PLD 1993 SC 473. Acts like this which not only bring disgrace to the country's name but also are deteriorative to the society and atrophic to the youth who develop and carve the future of the country and mould the destiny of the Nation.
Such illegal and indecent activities are converting our younger generation into drug addicts, giving birth to a never ending cycle of enormities which not only cripple a society but also ruins the destiny of so many families in just a blink of an eye. Therefore,. the courts approach should be dynamic and should overlook the technicalities in the large interest of the country and public welfare." - In case reported as Socha Gul v. The State (2015 SCM R 1077) cited by the learned Special Prosecutor, the Hon'ble Supreme Court has again struck a note of caution while entertaining bails in cases relating to the narcotics in the following words: "It is pertinent to mention here that offences punishable under C.N.S. Act of 1997 are by its nature heinous and considered to be the offences against the society at large and it is for this reason that the statute itself has provided a note of caution under section 51 of C.N.S. Act of 1997 before enlarging an accused on bail in the ordinary course. When we refer to the standards set out under section 497 Cr.P.C. for grant of bail to an accused involved in an offence under section 9(c) of C.N.S. Act of 1997, even on that basis we find that an accused charged with an offence, prescribing various punishments, as reproduced above, is not entitled for grant of bail merely on account of the nature or quantity of narcotic substance, being four kilograms. Firstly, as deeper appreciation of evidence is not permissible at bail stage and secondly, in such situation looking to the peculiar features and nature of the offence; the trial Court may depart from the normal standards prescribed in the case of Ghulam Murtaza (supra) and award him any other legal punishment."
Respectfully following the above precedents and on the tentative assessment of the facts and circumstances of the case noted above, I have come to the conclusion that so far. applicant M.
Mubeen Khan is concerned, he was attributed a significant role and named by several witnesses in arranging / organizing the shipment of the cargo which leads a reasonable mind to believe that he was, prima facie, connected with the alleged offence which carried the capital punishment and thus I find no merit in his application which is accordingly rejected.
6. A perusal of the above order would IA reveal that this Court has already rejected the bail application filed on behalf of the applicant Muhammad Mubeen Khan on merits; record reveals that the instant second bail application was filed on behalf of applicant Muhammad Mubeen Khan on 09.01.2016 i,e, in one month of rejection of his earlier bail application; the contentions of the learned counsel for the applicant that some of the grounds shown in the earlier bail application were not dealt with separately, while .rejecting the bail application of the applicant, and, therefore, the bail plea of the applicant can be reconsidered in this second bail application, are patently untenable for the reasons that this Court has already rejected the first bail application filed on behalf of the applicant after having considered the prosecution case and over all facts and circumstances of the case on merits and as such in my humble view the instant second bail application, from face of it, is misconceived and not entertainable, as admittedly there is no fresh ground available to the applicant to file the instant second bail application. Reference can be made to the case of The State v. Zubair and 4 others (PLD 1986 SC 173) wherein the Honourable 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 or 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 SCM R 184), the Honourable 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 the filing of second bail application. "
7. The case of Raja Muhammad Akram Khan (supra) relied upon by the learned counsel for the applicant is not attracted to the case one in hand as in the said case when the first bail application of the applicant in that case was rejected, the evidence of Shaukat Hussain and Ikhlaq Ahmed was yet to be recorded and it was held that when that evidence was recorded then the accused had every right to move a subsequent bail application. Thus in my humble view the cited case is nut helpful for the applicant.
8. In view of what has been stated above, I am of the considered view that after rejection of earlier bail application of the applicant Muhammad Mubeen Khan on merits, the instant second bail application without any fresh ground is not entertain-able by this Court. Accordingly, the bail application in hand is liable to be dismissed.
9. Above are the reasons of short Order dated 07.11.2016, whereby the bail application was dismissed.