1. ' There is a note from office to the effect whether this fresh bail applicaication be heard by me or by my learned brother Abdul Razzak A. Rhahim, J., who had passed order dismissing bill application on 23-2-1986, luring my temporary absence. Office has placed reliance on the case of Ch. Muhammad Khan v. Sanaullah and another (1). Ratio of decision ' (1) P I, D 1971 SC 3?4 would not apply to the present case for the reason that under the Special Law, Special Appellate Court is separately and specifically constituted under section 46 of Prevention of Smuggling Act, 1977 with the appointment of a Judge of the High Court by the Federal Government in consultation with the Chief Justice of the High Court of which he is a Judge. Special jurisdiction is conferred upon him specifically for hearing of appeals and other Miscellaneous Applications arising from trial of customs cases pending in the Court of Special Judge (Customs and Taxation). Under subsection
(5) of section 46 stated above it is provided that when the Judge of a Special Appellate Court is, for any reason, temporarily unable to perform his duties, he may inform the Chief Justice of the High Court of which he is a Judge and the Chief Justice shall nominate another Judge of the same High Court to perform the functions of Special Appellate Court so long as such Judge is unable to perform his duties. This being the correct legal position, this bail application was dealt with by my learned brother while I was away sitting on Circuit Bench at Hyderabad. Since I am available now the bail application is to be heard by me as Judge of Special Appellate Court who is appointed by the Government for such specific purpose.
2. ' The second question which arises for consideration of this fresh bail application is whether it can be repeated after it has been disposed of on merits previously. I have seen the order passed by my learned brother which is a detailed order passed on merits. Mr. Farooq Rasnid states that at the time of previous hearing of bail application he did not have with him copy of Mashirnama and statements under section 161, Cr. P. C. Of two Mashirs namely Muhammad Waris and Naeem Rashid. Now since he is armed with these documents he would be in a better position to criticize the recording of Mashirnama. He wants to assail the Mashirnama on the ground that it has not been prepared in complete accord with requirement of section 103, Cr. P.C. Mr. Farooq has very fairly and candidly conceded that this is not a fresh ground as such because he had agitated this point but was not able to argue effectively for the reason of want of relevant papers mentioned above. Perusal of the order passed by my learned brother clearly shows that at the time of hearing Mr. Abdul Rasheed Nizamani, Advocate was appearing for State and he had with him all the papers relating to the investigation of the case. It was open to the learned counsel for the applicant to have requested the counsel for State to be allowed to peruse the papers relating to the investigation of this case. Thirdly that this point was raised and is reflected in the second paragraph of the order passed earlier and reference to Mashirnama is also made therein.
3. ' Learned counsel for the applicant has conceded that this is not a fresh ground and additionally reference can be made to the view taken by the Supreme Court in the case of State v. Zubair and others (I), that fresh ground is one which was not available at the time of hearing of previous bail application and if such ground was available when the first bail application was filed and was not taken or was not pressed, then it cannot be considered as a fresh ground and cannot be so taken for the purpose of subsequent bail application.
(1) PLD 1986 SC 173 ' For the facts and reasons stated above, second bail application is dismissed.