ORDER SHEET
IN THE HIGH COURT OF SINDH, KARACHI
Cr. Misc. Appln. No. 186 of 2010.
Date Order with signature of Judge |
For Katcha Peshi
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Date of hearing: 24-01-2011.
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For the applicant Mr. Muhammad Farooq Advocate
For the respondent Mr. Ali Haider Salim, learned A.P.G for the State
For the respondents Mr. Muhammad Abid Rajput, advocate
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AHMED ALI M. SHAIKH, J. Through this Criminal Misc Application, the applicant has impugned the order dated: 26.05.2010 passed by III-Additional Sessions Judge Karachi (Central), whereby the respondents No.1 to 3 have been granted bail in F.I.R No.178/2010 of P.S Gulbahar Karachi, for an offence U/s 302, 34 P.P.C.
The relevant facts of the prosecution case are that on 23.03.2010 complainant Hanif lodged report with police station Gulbahar Karachi. Stating therein that he is doing work of welding as well as mechanic. On same day as usual he was working at his shop, when at about 1030 p.m he observed that people were running. He also started to run towards his house, however when he reached at Gul Muhammad Mandakhel hotel, he saw many people gathered towards his house, he reached there and saw his brother Mohammad Siddiq Bhambhro and cousin Muhammad Umar Bhambhro were in injured condition, following which he took them to Abbasi Shaheed Hospital, but they expired. He further stated that he and deceased had enmity with Shahid Bikik, Bilal Bikik, Asghar Bikik and Imran. Some time ago his brother was also killed by the above named accused.
It is interalia contended that prior to this, respondents had filed bail application No.293 of 2010 and same was dismissed on merits by V-Additional Sessions Judge Karachi (Central) vide order dated: 15.04.2010. Subsequently after investigation challan was submitted on 21.04.2010. However instead of entrusting the case to the V-Additional Sessions Judge Karachi, who had earlier heard and dismissed the bail application of the respondents, the case was transferred to III-Additional Sessions Judge. Per learned counsel, the respondents filed subsequent bail application before III-Additional Sessions Judge on the very same grounds on which earlier bail application was dismissed by V-Additional sessions Judge vide his order dated: 15.04.2010, however trial Court without taking into consideration the important aspect of case i.e. the previous bail application of the respondents was already dismissed on merits, passed the impugned order. It is further contended that while passing the impugned order, the learned trial Court has prejudiced the case of the prosecution as deeper appreciation instead of tentative assessment was made. It is lastly contended that even the learned counsel for the complainant was also not provided an opportunity of hearing, though his name finds place in the impugned order but not a single word in respect of his submissions has been mentioned.
Mr. Ali Haider Salim, learned A.P.G for State adopted the arguments of learned counsel for the applicant and did not defend the impugned order.
conversely Mr. Muhammad Abid Rajput learned counsel for the respondents No.1 to 3 contended that the complainant is not eye witness of the occurrence; neither he was present at the place of occurrence nor saw any of the culprits while causing fire arm injuries to the deceased. Per learned counsel, the respondents have been implicated due to previous enmity, neither the crime weapon was recovered from either of the respondents nor prosecution collected any material to show their nexus with this un-happy episode in which two persons were murdered.
Heard the learned counsel for the parties and perused the record.
Upon a perusal of order dated: 15.04.2010 passed by V-Additional Sessions Judge Karachi (Central), it appears that first bail application on behalf of the respondents was pressed on merits, but their bail plea was turned down vide order dated: 15.04.2010. However the impugned order reveals that on the same grounds which were pressed in earlier bail application the respondents have been granted post arrest bail. It is pertinent to mention here that neither a new development had taken nor any fresh ground arose except the previous bail application was dismissed when charge sheet was not submitted and subsequently order was passed just after the challan was submitted. In these circumstances, I have doubt about the maintainability of subsequent bail application because in the earlier bail application the same grounds were raised and considered by the Court. Mere submission of challan does not constitute a fresh ground in favour of the respondents. It is settled principle of law that if the grounds pressed in the previous bail application have been considered and rejected the second bail application would only to be competent if fresh material has come on record, which evaluates new development on the facts relevant for disposal of bail matter, or any other grounds which were not available at the time of hearing of earlier bail application. As for as even filing of challan does not create a fresh ground for considering bail plea of the accused, as held in the case of Sabz Ali V. The State (P L D 1993 Quetta 66).
In view of above, I am of the considered view that the impugned order has been passed in utter violation of settled principles of law. Even the trial Court did not take into consideration the very important aspect of the case that the earlier bail application on similar grounds was dismissed and no fresh ground was available to the applicants to repeat their bail plea.
For the foregoing reasons, Criminal Miscellaneous Application is allowed, consequently impugned order dated: 26.05.2010, whereby respondents NO.1 to 3 have been granted bail is set-aside. The respondents are at liberty to repeat bail application on any fresh ground available to them if so advised.
JUDGE
Karachi
Dated:______________
Abdul Salam /P.A