' BASHARAT AHMAD SHAIKH, J.--- A criminal case under sections 324, 337-A and 34, A.P.C. Was registered against the appellant and three other persons, namely, Sarfraz, Mehtab and Tassadaq at Police Station Dadyal on 25th of August, 1996. The petitioner applied for bail before arrest in the Zilaee Adalat. Interim bail was initially allowed but confirmation was refused on 8th of October, 1996. The petitioner again applied for bail on 17th of October, 1996 when one challan had been presented before the Zilaee Adalat. The application was rejected on 30th of November. The petitioner then moved to Shariat Court by filing a revision petition which has also been dismissed.
He has now filed this appeal which lies as to read under the Islami Tazeerati Qawaneen Nifaz Act.
2. It is stated in the First Information Report that at 7-00 p.m. On 25th of August, 1996 a tractor belonging to Mazhar Iqbal was standing at the crossing of Siakh Bathar road when he took his seat in the tractor accused persons Sarfraz, armed with .12 bore double-barrel gun, Muhammad Arif, appellant,. Armed with .30 bore pistol, Mehtab also armed with .30 bore pistol and Tassadaq, who was carrying a Bailcha, came to the place of occurrence in the car of Muhammad Irfan. The allegation is that they started firing on Mazhar Iqbal. Injuries were caused by the Bailcha.
Muhammad Ilyas and others who were present on the spot raised hue and cry and then took the injured person to the hospital as to the motive of the crime the prosecution case is that there is an armed quarrel for which the accused persons nursed enmity against Mazhar Iqbal. When challan was presented section 13/20/65 (Arms Act) was also added on account of recovery of an unlicensed pistol from. The appellant.
3. The bail application of the appellant was rejected by the trial Court on the ground that there was an allegation against the appellant that he used the firearm to cause injuries on the person of Mazhar Iqbal. The trial Court also observed that the case was covered by the prohibition clause. In the Shariat Court it was argued that it was a case of further inquiry but this plea does not find favour with the learned Judge in view of the facts that the appellant was duly nominated in the First Information Report. The prosecution case was supported by eye-witnesses and also corroborated by medico-legal report and the evidence of recovery as a result of which challan had been filed before the trial Court.
4. The view taken by the trial Court that the case fell within the prohibition clause was vehemently challenged before us by Ch. Muhammad Anwar, the learned counsel for the appellant. The most serious section applied in the present case is 324 of the Penal Code (attempt to commit Qatl-e- Amd). The section lays down that whoever commits an act of Qatl-e-Amd he should be punished with imprisonment of a termd which may exceed ten years. It is also laid down that if hurt is cuased to any person by his act the offender shall be liable to the punishment provided for the hurt caused. Since hurt was caused in the present case the prosecution has also added section 337-A of the Penal Code. Section 337-A consists of six parts and different punishment is provided in each part. The maximum sentence is in clause (vi) wherein maximum sentence is fourteen years. It was contended by Ch. Muhammad Anwar that if an offence carries punishment of death or imprisonment of life bail is prohibited by subsection (i) of section 497. He pleaded that the maximum punishment provided in section 337-A is fourteen years which is not applicable to the present cause but assuming that it is applicable it is not covered by the prohibition clause. The elaboration of the learned counsel is correct. Under section 497 it is provided that a person shall not be released on bail if there appear reasonable grounds for believing that he has been guilty of offence punishable for death or imprisonment of life. It is thus, clear that the case of the appellant does not fall in the prohibition clause. It appears that the trial Court by inadvertence read section 497 as it is enforced in Pakistan where imprisonment for ten years has also been included in the prohibition clause.
5. However, the fact that the case against the appellant does not fall in the prohibition clause of section 497 does not make out the case for grant of bail. The allegation against the appellant is that he, alongwith other persons, was lying in ambush. He used fire-arm thereby causing injury on, the person of Mazhar Iqbal. The trial Court as well as the Shariat Court have rejected the applications of the appellant for being enlarged on bail and while doing so did not exercise discretion arbitrarily but passed orders for refusal of bail keeping in view the circumstances of the case, including the gravity of the allegations against the appellant. We, therefore, decline to interfere.
6. It, however, seems to be in the interest of justice to allow the appellant to file a fresh bail application when the statements of eye-witnesses have been recorded. The appeal is, therefore, dismissed. Bail refused.
1998 P Cr. L. J 152 [Lahore] Before Mian Nazir Akhtar, J Mst. JANNA T BIBI---Petitioner versus MUHAMMAD BASHIR and another---Respondents Criminal Miscellaneous No,1146/B/C of 1997, decided on 1st July, 1997.
(a) Criminal Procedure Code (V of 1898)--- ----S. 497(5)---Penal Code (XLV of 1860), S.337-F(1)(vi)---Cancellation of bail---Sessions Court, despite the knowledge of dismissal of the previous bail application of accused by it, and in absence of any new ground for bail had allowed bail to accused in violation of the principles and law laid down by the superior Courts relating to grant of bail---Order of Sessions Court granting bail to accused being illegal was set aside and bail allowed to him was cancelled accordingly. [pp. 153, 154] A, C & D Zubair's case PLD 1986 SC 173 ref.
(b) Criminal Procedure Code (V of 1898)--- ----S. 497---Penal Code (XLV of 1860), S.337-F(1)(vi)---Bail---Subsequent bail application to the same Court---Maintainability---Second or subsequent bail application to the same Court shall lie only on a fresh ground, i,e, a ground which did not exist at the time when the first application was made and if an available ground was not taken or was not pressed in the first bail application the same cannot be considered as a fresh ground and made a basis of any subsequent bail application. [p. 153] B Zubair's case PLD 1986 SC 173 ref. Muhammad Farooq Qureshi Chishti for Petitioner. Mumtaz Ahmad Bhalwana for Respondent No, 1 . Ch. Muhammad Ayyub for the State.
' The petitioner has filed this petition under section 497(5) of the Cr.P.C. For cancellation of ed to Muhammad Bashir, respondent No,1, by the learned Additional Sessions Judge vide order, dated 12- 2-1997.
2. I have heard learned counsel for the petitioner, the State and respondent No, 1 . Muhammad Bashir respondent No,1 is an accused in the case registered vide F.I.R. No,369, dated 18-12-1996 for offence under section 337-F(1)(6) of the P.P.C. At Police Station Jauharabad, District Khushab. He filed an application for grant of bail which was dismissed by the learned Additional Sessions Judge on merits vide his order, dated 22-1-1997. The relevant part of the order reads as under:-- "I have heard the arguments and perused the record. The complainant is a wife of the accused petitioner, therefore: the chances of false implication are very remote. The medical report and X- Ray present on the record shows that three metacarpal bones of the left hand of the complainant were fractured. It shows that the accused petitioner treated his own wife with cruelty. The challan against the accused petitioner has been submitted in the Court of Maga Magistrate and the trial is in progress. In my view if the accused petitioner is enlarged on bail he will tamper (with) the prosecution evidence, and the apprehension shown by learned counsel for the complainant in this respect appears to be genuine. The petitioner is behind the bars for a period of about 10 days, therefore, I am of the view that at this early stage of the case the accused petitioner is not entitled to the concession of post-arrest bail."
' Just after 20 days the same learned Judge granted bail to respondent No,1, vide order, dated 12-2- 1997. The relevant part of the order reads as under:-- "I have heard the arguments and perused the record. The injured/complainant is admittedly wife of the accused-petitioner. The marriage bond between them still exists. The petitioner is behind the bars for a period of one month. The alleged offence does not fall within the prohibitory clause of section 497, Cr.P.C. In my view the petitioner is behind the bars for a sufficient period so in the given circumstances admit him to bail subject to furnishing of bail bonds amounting to Rs,50,000 with one surety in the like amount to the satisfaction of the learned trial Court/Ilaqa Magistrate."
It is strange that despite knowledge of dismissal of the previous bail petition by him and in the absence of any new ground the same learned Additional Sessions Judge ventured to allow bail to respondent No,
1. The ing order appears to be plainly illegal and in violation of the rule laid down in Zubair's case PLD 1986 SC 173. The relevant part of the judgment reads as under:- "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 merefact 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 appellant'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."
The question whether the learned Additional Sessions Judge had allowed bail due to some ulterior motive can be probed into on the administrative side but one thing is clear that he has acted in violation of the principles and law laid down by the superior Courts in matters relating to grant of bail.
3. For the foregoing reasons, this petition is accepted and order, dated 12-2-1997, whereby bail was granted to respondent No,1 by the learned Additional Sessions Judge is set aside and his bail is cancelled. He shall be taken into custody by the police forthwith and sent to the judicial lock-up.
Bail cancelled.