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Criminal Appeal No.13/MR of 1988, decided on 16th October, 1988.

(On appeal from the judgment of the Azad Jammu and Kashmir Shariat Court, dated 4-7-1988, in Criminal Appeal No. 19 of 1988).

---S. 497--Penal Code (XLV of 1860), Ss. 302/147, 148/149 & 109--Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act (IX of 1974), S.5--Subsequent bail application on identical grounds-Competency-[Practice and procedure].

Although a subsequent bail application on the identical grounds is not barred by any statutory provision, yet this is a long standing practice with the Courts that successive bail applications on the same grounds are not encouraged. This practice however, cannot be universally accepted. In rare and exceptional cases, if the circumstances of a case so demand, the practice may be departed from. In the present case the evidence of two eye-witnesses had been closed by the Trial Court at the time of filing of second bail application; the revision. petition which was pending in Supreme Court had also been dismissed and the matter had been finally put at rest. Thus at the time of subsequent application new ground existed in favour of the accused persons to move the Court afresh.

Khalid Mahmood v. The State 1987 P Cr. L J 801; Malook and another v. The State 1986 P Cr. L J 632; Nazir Ahmed Zia v. The State 1986 P Cr. L J 1496; Saleem Akhtar v. The State P L D 1980 Lah. 127; Aijaz Ali v. The State P L D 1981 Kar. 484; Gulzar Hassan Shah v. Ghulam Murtaza P L D 1970 SC 335; Dr. Muhammad Hassan Rizvi v. The State 1988 P Cr. L J 1198 and The State v. Zubair P L D 1986 SC 173 ref.

---S. 497--Penal Code (XLV of 1860), Ss. 302/147, 148/149 & 109--Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act (IX of 1974), S.5--Accused alleged to have inflicted injury to deceased by gun-fire and before that broke the shutter of the door with butt of his rifle--Accused declined bail.

Ch. Muhammad Riaz Akhtar for Appellants.

Syed Manzoor Hussain Gillani, A.-G. for the State.

Mr. Abdul Rashid Abbasi for the Complainant.

--This appeal has been directed against the judgment of the Shariat Court dated 4-7-1988, whereby the bail application of the appellants, herein, was rejected.

2. The brief facts giving rise to the present appeal are that Karamat Hussain, complainant, lodged F.I.R., on 21-6-1985, at about 10.00 p.m., at Police Post Sarsawa, District Kotli, alleging that while he was sitting at the shop of his brother Abdul Khaliq in Panjaira Bazar, Muhammad Anwar came there and advised Abdul Khaliq to close his shop, because Muhammad Siddique, Sarfraz, Muzhar Hussain, Muhammad Sadiq, Gul Hussain, Abdul Haq, Faraqat Hussain, Rahmat, Sain Aslam, Mustafa, Karamat and Amin were sitting armed in his shop and intended to kill him (Abdul Khaliq). On this information, Abdul Khaliq closed the shop and left for his home along with the complainant and one Muhammad Yaqoob. When they reached a ridge leading to their houses, the above-mentioned accused overtook them from behind and started firing. Consequently Khaliq, Muhammad Yaqoob and the complainant, started to run away and finally took refuge in the house belonging to one Dil Muhammad, resident of Panjaira, and closed the door from inside. Meanwhile, the accused persons reached the house of Dil Muhammad in pursuit and broke open the door of the said house with the butts of their rifles. Sarfraz accused fired at Abdul Khaliq with his, rifle through a hole of the door, which was caused due to the breakage of the part of one of the shutters. The fire hit Abdul Khaliq at his left thigh; then, on the exhortation of the other accused persons, Muhammad Siddique, appellant, entered into the room through the said hole and fired at Abdul Khaliq with his gun and injured him. On the above report, a case was registered against the appellant and other accused mentioned in the F.I.R. under sections 302/147, 148/149, 109, A.P.C. and section 5 of the Islamic Penal Laws Act.

3. Faraqat Hussain, Gul Hussain and some others sought bail from the District Criminal Court which was refused. The appellants, except Muhammad Siddique, sought bail from the Shariat Court which was allowed to them. Karamat Hussain, complainant, filed an appeal against the order of the Shariat Court in this Court which was partly accepted and the bail granted to the aforesaid three accused appellants was cancelled. It may be observed here that at the time of cancellation of the bail of the aforesaid three accused appellants, the trial Court had not yet proceeded with the trial and thus no evidence had been recorded. After the trial Court recorded the statements of some of the prosecution witnesses, the aforesaid three appellants again filed an application in the trial Court seeking bail but the same was also dismissed. The appellants then approached the Shariat Court in their bail matter but their prayer for bail was turned down on 13-8-1987. Some time after the appellants filed another application seeking bail in the trial Court which was dismissed by the trial Court and the revision petition filed by the appellants, herein, was also dismissed by the Shariat Court observing that the appellants were not entitled to the concession of bail on merits as well as on the ground that the second application was incompetent because it did not disclose any fresh ground. The present appeal has been preferred against the aforesaid order of the Shariat Court

4. We have heard the arguments and gone through the file. It has been contended by Ch. Riaz Akhtar, the learned counsel for the appellants, that the Shariat Court has erroneously field that the second application was incompetent. He has argued that seven of the accused, whose case was identical to the case of the present appellants, except the case of Muhammad Siddique, appellant, were released on bail by the District Criminal Court; and the revision petition seeking the cancellation of their bail was also dismissed by the Shariat Court. Thus, according to the learned counsel for the appellants, as the Shariat Court while passing the impugned order did not consider this aspect of the case, the subsequent bail application was competent. The learned counsel has submitted that it is a well settled principle of law that the accused persons having identical cases against them are allowed or refused bail as a whole on the principle of "consistency and no discrimination is made in such cases. He has cited following authorities in support of his contention:

In Khalid Mahmood v. The State 1987 P Cr. L J 801, it was opined that as the accused who was released on bail was at par with the accused seeking bail, he was entitled to bail on the principle of "consistency".

In Malook and another v. The State 1986 P Cr. L J 632, concession of bail was given to the accused on the ground that another accused who had identical case to the accused had already been released on bail.

The aforesaid principle was also affirmed in a case Nazir Ahmed Zia v. The State 1986 P Cr. L J 1496 which was a case from the jurisdiction of Azad Jammu and Kashmir Shariat Court.

5. The learned counsel for the appellants has also argued that the Shariat Court has wrongly assumed that no fresh ground existed at the time of filing of second bail application which resulted in the impugned order. His case is that at the time of the disposal of the first application on 13-8-1987, the evidence of two of the eye-witnesses, Muhammad Yaqoob and Saghir, had not been closed by the trial Court. He has maintained that while disposing of the first application it was argued before the Shariat Court that the prosecution was deliberately delaying the trial and was not producing the prosecution evidence despite the various opportunities afforded to it, but the Shariat Court observed that it was for the trial Court to procure the attendance of the witnesses. He has submitted that at the time of the disposal of the second application, the evidence of two of the eye-witnesses, namely, Muhammad Yaqoob and Saghir, was closed by the trial Court; this fact was brought to the notice of the Shariat Court but the same was not properly adverted to. The learned Counsel has maintained that the learned Shariat Court has observed that as the statement of Mukhan Khan and Mst. Maqbool Jan, eye-witnesses, had been recorded by the trial Court at the time of the disposal of the previous bail application, no fresh ground existed for filing the second application. Thus, the learned counsel has maintained that the learned Judge in the Shariat Court has overlooked the important aspect of the case that Muhammad Yaqoob and Saghir, who allegedly were the eye-witnesses in the case, were not produced by the prosecution despite the fact that one of the said witnesses, i.e., Muhammad Yaqoob was present in the Court when the trial Court was proceeding with the trial. The trial Court after affording about 7 opportunities to the prosecution for producing the said witnesses closed their evidence. The learned counsel has argued that as the statements of the aforesaid two witnesses recorded under section 161 Cr.P C. could not be considered by the learned Judge of the Shariat Court at the time of the disposal of the second application, the second application was competent because the changed circumstances furnished a fresh ground. Thus, according to the learned counsel for the appellants, the observation of the Shariat Court that new grounds for releasing the appellant did not exist at the time of second bail application is not correct. The learned counsel has further maintained that there is no statutory provision barring second bail application even in absence of "new grounds. He has contended that an order passed on a bail application is not a judgment within the meaning of the provisions of Cr.P.C.; as such it cannot be said that an order passed on a subsequent application would amount to review of the first order. He has contended that as subsequent application on the same ground is barred not by law but as a matter of practice, the Court in proper cases can entertain a second bail application on the same grounds the circumstances of the case so warrant. He has referred some authorities in support of his contention

In Saleem Akhtar v. The State P L D 1980 Lah. 127, it has been observed that there is" no bar to file a second bail application even in absence of fresh material. because the second bail application cannot be termed as seeking review of the first order

In Aijaz Ali v. The State P L D 1981 Kar. 484, it has been observed that a fresh application on the ground which was not before the Judge or was not considered by him before was not barred in law.

In Gulzar Hassan Shah v. Ghulam Murtaza P LR" 1970 SC 335, it has been observed that the order passed under section 498, Cr.P.C. is not controlled by section 369, Cr.P.C. and thus the resort may be made to section 561-A, Cr.P.C. in suitable cases for considering bail matters afresh.

6. The learned Advocate-General has conceded that the case of the accused persons released on bail is identical to the case of the present appellants, except Muhammad Siddique. He has also conceded that the order of the trial Court releasing them on bail was upheld by the Shariat Court. But he has contended that as the ground of "consistency" was available to the appellants a: the time of filing of the first application which was decided on 13-8-1987 and they failed to agitate the same, they cannot come up with fresh application relying on the said ground. It has been further contended by the learned Advocate-General that the matter of bail of the appellants, except Muhammad Siddique, had attained finality in view of the order of the Shariat Court dated 13-8-1987 and thus the subsequent application was rightly held as incompetent. It may be observed here that Muhammad Siddique, appellant, did not previously sought bail and thus his case is distinguishable from the other appellants.

7. Mr. Abdul Rashid Abbasi, the learned counsel for the complainant, has cited following authorities in support of his contention that the second bail application was not competent:

In Dr. Muhammad Hassan Rizvi v. The State 1988 P Cr. L J 1198], it has been held that the ground which was available to the accused at the time of first application but was not taken or pressed, could not be considered as a fresh ground for the purpose of subsequent application. Identical view was expressed in cases reported as The State v. Zubair P L D 1986 SC 173 and Karamat Hussain v. Faraqat Hussain P L D 1987 SC (AJ&K) 27. It may be mentioned here that in the last mentioned two cases the subsequent bail applications were submitted not only on the same grounds but the fact was also concealed from the Court that the previous bail applications of the accused were rejected by another Bench.

8. So far as the argument advanced by the learned counsel for the appellants that as the evidence of Muhammad Yaqoob and Saghir was closed at the time of the filing of second application and as such fresh ground existed for filing the same is concerned, it has been contended on behalf of the complainant that a revision petition against the order whereby the evidence of the said witnesses was closed is sub judice before this Court and as such the argument that fresh circumstance was of a permanent nature Which entitled the appellants to file second bail application was unfounded.

9. We have given our due consideration to the arguments advanced at the Bar. As stated earlier the case of Muhammad Siddique, accused/ appellant, stands on different footings than the other three accused/ appellants. Muhammad Siddique, accused /appellant, did not previously file any bail application. There is, prima facie, evidence on the record that he caused injury to the deceased, Abdul Khaliq, with a gun fire. Thus, we propose first to deal with the question of bail of Gul Hussain, Faraqat Hussain and Ahmed Hussain, appellants. We are of the view that although a subsequent bail application on the identical grounds is not barred by any statutory provision, yet this is long-standing practice with the Courts that successive bail applications on the same grounds are not encouraged. This practice however, cannot be universally accepted. In rare and exceptional cases, if-the circumstances of a case so demand, the practice may be departed from. So far as the case in hand is concerned, we think it clearly comes under an exception. We are of the view that the evidence of two eye-witnesses, i.e. Muhammad Yaqoob and Saghir, had been closed by the trial Court at the time of filing of second bail application; the revision petition which was pending in this Court has also been dismissed and now the matter has been finally put at rest. Thus, we have no hesitation in holding that at the time of subsequent application new ground existed in favour of the appellants to move the" Court afresh. There can be hardly denying of the fact that the statements of the aforesaid two witnesses recorded under section 161 Cr.P.C. which might have been considered at the time when this Court cancelled their bail; similarly the same might have been weighed with the Shariat Court at the time of disposal of the first bail application. But at the time of disposal of second application by the Shariat Court, the evidence of the said witnesses had been closed. This furnished a new ground to the appellants to move the second application. It is not out of place to mention here that the said two witnesses are eye-witnesses and they had important bearing on the case. It may also be observed here that when this Court cancelled the bail of three of the appellants, the trial Court had not recorded the statements of the eye-witnesses in the case. We have only considered the statements of witnesses recorded under section 161 Cr.P.C. Now, we have gone through the statements recorded at the trial and are of the view that, prima facie, there are some variations in the statements made by the eye-witnesses under section 161 Cr.P.C. and the statements recorded by the trial Court. We, however, do not want to express ourselves on the merits of this aspect and refrain from referring to any such variation because that may prejudice the case one way or the other. Taking into consideration overall circumstances of the case; particularly the statements of the two witnesses, namely, Makhan Khan and Mst. Maqbool Jan, recorded by the trial Court; the fact that the prosecution did not examine two of the eye-witnesses, i.e. Saghir and Muhammad Yaqoob, and the fact that seven of the accused persons, whose case is at par with the aforesaid three appellants, have already been released on bail, we, without deep appreciation, feel inclined to accept the prayer of bail made by Gul Hussain, Faraqat Hussain and Ahmed Hussain. The trial Court is at liberty to arrive at its independent conclusion and would not be influenced by the tentative assessment or remarks made.

10. So far as the bail matter pertaining to Muhammad Siddique is concerned, after giving our due consideration to the material against him, particularly the material against the allegation that he inflicted injury to Abdul Khaliq by gun-fire and before that he broke the shutter of the door with butt of his gun, we are of the view that he is not entitled to the concession of bail.

In the light of what has been stated above, we accept the prayer for bail made by Gul Hussain, Faraqat Hussain and Ahmed Hussain. Consequently, their appeal succeeds. It is directed that if each of the said appellants executes a bail bond in the sum of Rs.2 lac (two lac) consisting of four sureties and personal bond in the like amount to the satisfaction of the Sessions Judge, Kotli, they shall-be released from Jail. The appeal of Muhammad Siddique fails and is hereby dismissed.

M.B.A/226/S.C.A. Order accordingly.

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