MALIK HAQ NAWAZ, J.---First Information Report No,30/2017 was registered under section 302/1 14, P.P.C. dated 08.06.2017 registered at Police Station KKH, Chilas, District Diamer .
2. The petitioner filed 1st bail application bearing Criminal Miscellaneous No, 213/2017, which was declined on merit by this Court vide judgment/order dated 27.12.2017. The petition in hand is second bail application on fresh grounds.
3. The learned counsel for the petitioner was asked to assist the Court about the maintainability of the instant petition as apparently there is no fresh ground as the earlier bail petition of the petitioner was declined on merit and all the grounds were considered and had not found favour with the Court.
4. The learned counsel for the petitioner submitted that 2nd bail application on legal ground is maintainable. The learned counsel was asked to argue the case on merit. Reliance was placed 2007 PCr .LJ 1542.
5. The learned counsel submitted that the case of the petitioner falls within the provision of Section 315/316, P.P.C., which aspect of the case was neither brought in the knowledge of the Court nor the case was considered, which resulted into miscarriage of justice, while disposing of 1st bail application of petitioner . Further that FIR was lodged with a considerable delay of 02 hours, when the Police Station was at a distance of only 22 Km, which time has been consumed to tailor a false story . The stick in strict sense is not a weapon of offence. Lastly that the petitioner is behind the bar since about 02 years and entitled for concession of bail.
6. The learned Dy. Advocate General vehemently opposed the bail petition and submitted that no fresh ground has been raised in the instant petition, hence the petition is not maintainable. Per learned Dy. Advocate General the earlier dismissed order/ judgment of this Court has exhaustively been dealt with all the grounds, which were raised in the first bail petition and the bail was declined on merit.
7. The 1st bail petition of the petitioner was dismissed on merit. The relevant portion of the judgment/order pronounced by this Court in Cr . Misc No, 213/2017 is re-produced as under:- "6. The petitioner is directly charged in the FIR and a specific role of causing injuries to the deceased has been attributed to him. The eye-witnesses have supported the version of complainant, whose names are mentioned in the FIR. The delay in lodging the FIR has been well explained and the delay in recording the statements of eye- witnesses cannot react adversely on the prosecution case as names of the eye-witnesses are mentioned in the FIR. Delay in recording the statements of eye-witnesses, when their names fine mentioned in FIR reflect on inefficiency of the police and not on the creditability of the witnesses. All these questions of fact raised could be answered by the prosecution at the time of trial.
8. As well as the maintainability of the instant 2nd bail petition is concerned, it is undoubtly made clear that fresh bail petition would only be on a ground, which has been arisen at a later stage and was not available when the 1st bail application was filed and disposed. The contention of the learned couns el that if a law point was not raised/decided by the Court, the second bail application would be maintainable is repelled. The wisdom is drawn from PLD 1986 SC 173 . The relevant citation is re-produced as under:-
(e) Criminal Procedure Code (V of 1898)--- ----S. 497 / 498--- Second or subsequent bail application to same Court when lies. The second or the subsequent bail application to the same Court shall lie only 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 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. The more fact that the Judge who had rejected the first bail application with the observation as far as the remaining petitioners 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 merit. It must be assumed that he had considered all the please or grounds raised by appli cant's counsel before him and that same had not found favour with him.
The notion that each contention raised before the Court in the bail application must be dealt with separately or repelled by recording elaborate reasoning, is totally misconceived. [P . 1771 I"
9. It is held by this Court in a judgment reported in 2016 PCr.LJ 1906 that 2nd bail application would only lie on a fresh ground, which has arisen later on after dismissal of 1st bail application. Relevant citation is re-produced for the purpose of convenience.
Criminal Procedure Code (V of 1898)--- ----S. 497---Penal Code (XLV of 1860), S. 302---Qatl-i-amd--- Dismissal of earlier bail application---Maintainability--- - Earlier , four applications filed by accused in the trial Court having been dismissed, accused filed two successive bail applications before different Judges of Chief Court, which were dismissed and accused had filed (present) third application---Earlier two bail application were dismissed by two different Judges of Chief Court after considering each and every available ground; no fresh ground was available for filing third bail application--- Judgments in both earlier applications were rendered after due application of judicial wisdom----Second and successive bail applications, as a matter of principle were always placed before the judge, who decided the earlier bail application to avoid conflicting decision---Filing of subsequent bail application before the another judge who 'passed or dealt with earlier application of the same case---Provision of S. 497, Cr. P. C., in the present case, had been misused in a flagrant manner as present bail application was filed before Different judge without availability of any fresh ground -- If a ground was available and not taken, when first bail application was moved, same could not be taken or considered in a subsequent bail application-- Present bail application was dismissed being meritless, in circumstances . "
10. In view of the above discussion, no fresh ground has been raised in the instant petition. The earlier bail petition was declined on merits and all the grounds taken/argued were considered and were not considered in favour of the petitioner . The petition is meritless and declined.