Wednesday, 30 May 2012

Ground of cross case should be taken on time

PLJ 2010 Cr.C. (Peshawar) 251

Present: Tariq Parvez Khan, CJ.

ARIF--Petitioner

versus

STATE and another--Respondents

B.A. No. 210 of 2009, decided on 6.4.2009.

Criminal Procedure Code, 1898 (V of 1898)--

----S. 497--Pakistan Penal Code, (XLV of 1860), Ss. 324/34--Bail, dismissed--Petitioner filed already bail application, which had been dismissed by Sessions Judge--He filed another application--Application was heard but no argument qua existence of cross case was taken up--There was reference to the existence of cross case before passing its order by High Court in earlier bail application--It shall be presumed that the ground of cross case was available but was neither taken up nor pressed, hence this will not be a fresh ground as for case of petitioner was concerned--Where a ground which was available to the present petitioner and the ground was in existence but not taken up and when in the bail application of co-accused, bail was allowed bail on the basis of cross case but facts and circumstances of two accused not exactly at par i.e. co-accused who was allowed bail by High Court was also injured but not the present petitioner, therefore, rule of consistency would not be applicable and as such petitioner was not entitled to grant of bail either on fresh ground or on the basis of principle of consistency--Bail dismissed.

      [P. 253] A & B

Ms. Farhana Marwat, Advocate for Petitioner.

Mr. Fazal Rehman Khan, Addl. A.G. for State.

Date of hearing: 3.4.2009.

Judgment

Arif the present petitioner is accused in case FIR No. 610 dated 6.10.2007 of Police Station Khan Raziq Shaheed Peshawar.

2.  Complainant Muhammad Fayaz reported the occurrence by stating that he was fired at by the petitioner, his brother Rasool Khan and their father Waris Khan.

3.  Arif has been disallowed bail on merits by this Court in the first round on 9.9.2008 and he has repeated this bail application on the ground that as one of his similarly charged co-accused has been allowed bail, he is entitled to the grant of bail by pressing into service the principle of consistency.

4.  It so happened that Waris a co-accused of the petitioner filed BA No. 1504 of 2008 and when his bail application was argued by the same learned counsel appearing for Arif petitioner, she for the first time argued that there is a cross case vide FIR No. 611 of even date. Said FIR was perused alongwith other record and it was found that Mst. Yasmeen wife of petitioner Waris therein has lodged the report where she has charged Muhammad Fayaz complainant of this case for fire arm injuries caused to Waris and to her son Sunny Shah. It was then argued that on the basis of existence of cross-case where Waris was himself injured, he was entitled to grant of bail. Bail was granted to Waris just on the ground that there was in existence a cross case and that he himself was injured and that his injuries were suppressed.

5.  Now, when Waris has been released on bail, through this application bail is sought for Arif.

6.  Question has arisen if Arif is approaching this Court on the basis of fresh ground or not.

7.  No doubt is left in interpreting the words "fresh ground" as they have been elaborately discussed and defined by the Hon'ble Supreme Court of Pakistan in two renowned cases titled "Saleh Muhammad Vs. State" (PLD 1986 SC 211) and "State Vs. Zubair and four others" (PLD 1986 SC 163). It means that ground which did not exist at the time where first bail application was filed and where a ground was available to an accused person but was not taken or was not pressed, it cannot be considered to be a fresh ground for the purposes of second bail application.

8.  In this case a new dimension of the existence of cross case could have been taken i.e. a ground which existed but may be was not in the knowledge of the counsel filing and arguing the first bail application.

9.  In the present case, when bail application of Waris co-accused was argued and even when the present bail application was argued it was submitted that the existence of case FIR No. 611 was never brought to the notice of learned counsel appearing for the present petitioner.

10.  Whether lack of knowledge on the part of counsel arguing first bail application would also be covered in the definition of "fresh ground" requires consideration.

11.  On the principle that ignorance of law is no excuse, I will hold that if the counsel appearing for an accused person in the first round of bail petition had no knowledge of the cross case, it cannot be beneficially interpreted in favour of the accused because it shall be presumed that when the bail application in the first round was argued, record was before the Court as well as was open to inspection to the counsel for petitioner and there is always reference in the record of the existence of a cross case whether weak or strong.

12.  In this case when I was looking into the record regarding bail application of Arif filed in the first round, in order dated 10.6.2008 of learned Additional Sessions Judge-V of Peshawar who had rejected the bail application of Arif, there is clear-cut reference to the argument that Arif was entitled to grant of bail on the ground of cross case.

15.  Order dated 10.6.2008 was subject matter of earlier bail application which was heard on 9.9.2008 but no argument qua existence of cross case was taken up. If the learned counsel then appearing on 9.9.2008 had gone through the order dated 10.6.2008 it could have been in her knowledge that there was a cross case. Since, on record, there was reference to the existence of cross case before passing its order by this Court on 9.9.2008 in the earlier bail application, it shall be presumed that the ground of cross case was available but was neither taken up nor pressed, hence this will not be a fresh ground as for case of Arif the present petitioner is concerned.

14.  When Waris a co-accused has been allowed bail, can the present petitioner press into service the rule of consistency?

Where a ground which was available to the present petitioner and the ground was in existence but not taken up and when in the bail application of co-accused, accused was allowed bail on the basis of cross case but facts and circumstances of the two accused not exactly at par i.e. Waris who was allowed bail by this Court on 2.2.2009 was also injured but not the present petitioner, therefore, rule of consistency would not be applicable and as such Arif petitioner is not entitled to grant of bail either on fresh ground or on the basis of principle of consistency. This bail application is, therefore, dismissed.

 (A.S.)     Bail dismissed.


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