PURSUIT OF JUSTICE-- OR MR. JUSTICE!

PURSUIT OF JUSTICE-- OR MR <!--[if gte mso 10]> PURSUIT OF JUSTICE-- OR MR. JUSTICE! By Mr. Asif Saeed Khan Khosa, Barrister-at-Law The age-old legal adage which advises a lawyer to 'know thy Judge' has, in the recent years, assumed greater significance and extended application not only for the lawyers but also for the accused in a criminal case as now the accused (and also his counsel) has not only to know his Judge but to mark him well so as to follow him, pursue him and to chase him whenever and wherever he is available for the purpose of repeating his bail application if his earlier application in this respect had been dealt with by that particular Judge. The principle that all successive applications for bail on behalf of the same accused or any of his co-accused in the same case or its cross-case and all applications for cancellation of bail in respect of any of the accused in that case or its cross-case are to be placed before, heard and decided by the same learned Judge, who had disposed of the earlier application in that respect is well-settled by now. For the past many years the honourable Supreme Court of Pakistan has not only repeatedly reiterated and reconfirmed this principle but has also made sure to enforce the same by way of cancelling any bail granted in violation or disregard of this rule. 'The State v. Zubair and 4 others' (P L D 1986 S C 173) is the latest, manifestation and exposition in this respect. As this case is of paramount importance to the subject in hand I propose to deal with the same in some detail. In Zubair's case a bail application was repeated before the Peshawar High Court and the same was put up before the same learned Judge who had dismissed the earlier bail application. That learned Judge, however, declined to deal with the second bail application for the reason that he "had already expressed his opinion" in this behalf while dismissing the earlier application. Thus, the second application was placed before another learned Judge who was, ultimately, pleased to grant bail to the accused on merits. This order was assailed before the Hon'ble Supreme Court wherein the same was set aside with resultant cancellation of bail of the accused after condonation of a delay of 66 days in filing of the petition. While dealing with the subject the Court referred to: "the general practice which has been established by series o judgments delivered by this Court as well as by the High Courts during the last about 20 years, namely, that when a bail application of one or more accused is heard by a learned Single Judge of the High Court, it is he alone who should also hear all the subsequent bail applications filed by the same or other accused in the, same case, or the cross-ease." Referring to the 'salutary principles" in this respect the Court observed that besides avoiding a possibility of conflicting judgments this practice was necessary to dispel any 'false impression' that the second order by a different Judge was based on 'extraneous considerations", and went on to declare that: "It is mainly to avoid this that this Court has emphasized, over and over again, that subsequent bail application must be placed for disposal before the same learned Judge who had dealt with the first bail 'application." The Supreme Court further directed that: "If at the relevant time the first Judge is holding Court at a Bench other than the one where the first bail application was filed, it can always be transferred to that learned Judge, wherever he is sitting." Making room for exceptional cases it was, however, observed that: "there would, of course, be cases where it is absolutely impossible to place the second or subsequent bail application before the same learned Judge who had dealt with the earlier bail application of the same accused, or in the same case. In such cases, the learned Chief Justice of the concerned High Court may order that it be fixed for disposal before any other learned Judge of that Court." The above-mentioned Zubair's case was in effect a follow-up of the earlier case 'Khan Beg v. Sajawal and others' (P L D 1984 SC 341) wherein it was observed by the Supreme Court that: 'Normally a bail petition should be placed before the same Judge who had dealt with the earlier petition. We are told that the learned Judge who had dealt with the earlier petition had returned to Lahore. Even so, the petition could have been sent to Lahore for hearing by the same learned Judge." In another case 'Muhammad Yousaf v. The State' (1984 S C M R 134) wherein bail was allowed by a Sessions Judge when two earlier applications for bail on behalf of the same accused had already been rejected by an Additional Sessions Judge who was still available at that station the High Court had cancelled the bail on this score and this order of cancellation of bail was upheld by the Supreme Court holding the conduct of the Sessions Judge to be 'highly improper' as the same was 'bound to create serious misgivings in the public mind against judicial officers". 'Farid v. Ghulam Hassan and others' (1968 S C M R 924) is the earliest exposition of the 'Supreme Court in this respect wherein it was observed by their Lordships as under:‑ "It should have been a matter of some concern to the learned Judge that one of his brother Judges had already dealt with the case and expressed himself strongly against the grant of bail by the Additional Sessions Judge. Not only the long established practice 'of his Court, but also the rule of propriety required that he should have transferred the application for bail to the first Judge for disposal." In 'Muhammad Khan v. Sanaullah and another' (P L D 1971 SC 324) the Supreme Court was pleased to cancel the bail granted by the High Court on the ground that the learned Judge of High Court had failed to follow the 'rule' laid down in the above-mentioned Farid's case. It was observed by their Lordships that: "We are told that when interim bail was granted the first Judge was not available. But having granted interim bail to the respondent No.1 he should have stayed his hand and sent the case back to the first Judge' who had in the first instance refused bail." The same principle was reiterated in 'Muhammad Khan v. Muhammad Aslam and 3 others' (1971 S C M R 789) wherein it was held that: "In such a case the rule of propriety and harmony of the Court requires that the case be referred to the same learned Judge who had earlier refused bail." In a recent case of 'Muhammad Nabi and others v. Muhammad Munir Ahmad and others' (1986 S C M R 1321) where the main case was pending before an Additional Sessions Judge and bail was granted to the accused by the Sessions Judge while attending to urgent matters only as a vacations Judge, the High Court had cancelled .the bail thus allowed and the Supreme 'Court had been pleased to uphold the High Court's Order as "fully justified". Taking their cue from the Supreme Court the High Courts of different provinces have also generally applied and followed this principle religiously although some attempts have been made here amp there to' meet new situations and to interpret 'the rule so as to promote further development of the theme. As for the Lahore High Court as far back as 1968 in Muhammad Asian's case. (1968 P Cr. L J 152) it was held that a conduct in violation of this principle was 'not proper'. In 'Abdul Ghafoor alias Ghafoori v. The State' (P L D 1975 Lah.754) a Division Bench of the Lahore High Court discussed this principle in detail and laid down elaborate guidelines in this regard. This ruling was subsequently expressly relied upon in the case of Muhammad Yousaf (1979 P. Cr. L J. 665) by a Full Bench of the Lahore High: Court which referred to the principle in this respect as "the Rule". In the case of Ghulam Hussain (1987 P Cr. L J 852) a learned Single Judge described it as a 'rule of propriety'. But in the case of Mr. Zulfiqar Ali Bhutto (1978 P Cr.L J 320) although bail was allowed by a learned Single Judge of the High Court but the same was cancelled by a Full Bench of . $rich that learned Single Judge was not a member. It is, however, understandable that once the main case had been taken up by the High Court for trial in its original jurisdiction and a Full Bench was specially constituted in this respect all matters pertaining to that case (including the question of cancellation of bail) had then to be referred to that specially "constituted Full Bench alone. In the case of Muhammad Abbas (1984 P Cr. L J 1753) a learned Judge of the Lahore High Court termed this-principle under discussion to be 'the rule' which was to be observed 'in propriety'. The case of Faqir Muhammad (1985 PCr.LJ 2851) although strikes the same note but a totally fresh angle is introduced therein. Prior to this case any bail granted in violation of this rule was cancelled by the superior Courts on this score alone as having been allowed illegally. But in Faqir Muhammad's case after reiterating the principle and practice in this respect and after finding that the accused were even otherwise entitled to bail in that case the learned Judge of High Court went on to dismiss the application for cancellation of bail by observing that: "The fault in this case is of the Additional Sessions Judge and I am not going to penalize the respondents for his carelessness." This pronouncement of the High Court came as a breath of fresh air and opened up a new door of hope for an accused whose case merited bail who had otherwise gone wrong in procedure. Suddenly it was realized that the boot was in fact on the other leg. It was not for the accused alone but mainly for the Judge to ensure the compliance of the long-established 'rule'. Thus, the accused was not to be visited with a penalty of deprivation of his liberty for an 'act or omission of his Judge. A further inroad was made into tills rule by the then learned Chief Justice of the Lahore High Court in the case of Muhammad Iqbal (P L D 1985 Lah.134) wherein the following observations were made by his Lordship with reference to the Supreme Court's ruling in Khan Beg's case (P L D 1984 S C 341). 'The Supreme Court judgment to the effect that the bail petition should be placed before the same learned Judge who had dealt with the earlier petition only relates to the circumstances where the earlier petition made before one Judge was withdrawn and then a fresh petition was moved thereafter so that the same be dealt with by another Judge. It is in these specific circumstances that the Supreme Court has directed that bail petition should be placed before the same Judge who had dealt with the earlier petition, as it had disapproved the practice or procedure adopted in such cases. But where an earlier bail petition had been decided on merits and thereafter subsequent bail petition is moved by the same petitioner, there is no reason why it should not be dealt with by another Judge if the previous Judge is not available at a Bench or the Principal Seat. In this case of Muhammad Iqbal we see the learned Chief Justice, conscious of the enormous administrative and other difficulties posed by a rigid observance of the rule laid down by the Supreme Court, opening up a new door through the means of interpretation. This attempt, however, appears to be short-lived as the recent enunciation by the Supreme Court in Zubair's case (P L D 1986 S C 173) seems to have plugged the gap and slammed that door also. The Sind High Court has also followed the oft-repeated rule laid down by the Supreme Court in its letter and spirit. A conduct in violation of this rule was termed as 'contrary to judicial principle' in the case of Niaz Muhammad (1984 P Cr. L J 2676). In Sher Muhammad's case (1984 P Cr. L J 3126) where bail was refused by one Additional Sessions Judge but was subsequently allowed by another Additional Sessions Judge the High Court deprecated this conduct as "contrary to principles of law'. In the case of Muhammad Yousaf (1986 P Cr. L J 1246) where earlier two applications for bail were rejected but the third application in this respect was allowed by a different Additional Sessions Judge the High Court cancelled the bail holding this conduct to be 'illegal and improper". In "The State v. Aziz alias Abdul Aziz' (P L D 1985 Kar.27) the High Court went one step further and held that if the main case was pending trial before a Sessions Judge then any bail application in that case should also be decided by the Sessions Judge himself and the same ought not to be transferred or entrusted to an Additional Sessions Judge for disposal. As it has been noticed earlier the same view has found favour with the Supreme Court subsequently in the case of Muhammad Nabi (1986 S C M R 1321). A different situation arose 'in the case of Ibrahim Abdul Rehman Muhammad (P L D 1986 Kar. 351) wherein a bail application was dealt with by a learned Judge of High Court in the temporary absence' of the Special Judge (Customs and Taxation), who was also a Judge of the same High Court, in a matter pertaining to the special jurisdiction of the latter. At the time of moving of the second bail application by the same accused in that case a question arose as to whether the same should be placed before the learned Judge who had dealt with the earlier bail application or before the learned Special Judge who had by that time returned to the, Principal Seat of the High Court and was, thus, available. It was ultimately held that the second application was to be heard and decided by the learned Special Judge as he was by then available. The rationale is understandable as the matter pertained to the jurisdiction of a Special Judge under a special law. The resume of the case-law detailed above clearly establishes that notwithstanding a few variations here and there necessitated by exigencies of the situations 'the rule' and 'the principle' repeatedly emphasized by the honourable Supreme Court in this respect is generally strictly followed and rigidly applied by the High Courts and the Subordinate Courts. This rigidity and inflexibility of the rule has, however, given rise in the recent years to multiple causes of extreme hardship and frustration in many ways. It is to these sore points that I now turn in the following paragraphs: Gone are the good old days (probably for ever) when a High Court used to have only one seat and all its learned Judges used to hold Court in different rooms of the same compact building. The 'rule' that all subsequent bail applications must be placed before the same learned Judge who had dealt with the earlier application in this respect was conveniently applied and enforced as an application put up before a different Judge could, without any delay, expense or inconvenience, be transferred and despatched to another learned Judge holding Court in the room next door. The 'principle', therefore, was not only 'salutary' but also not inconvenient and the same pinched only those clever manipulators who, deceitfully or otherwise, wanted to play tricks with the Court. Everything in this respect was lie till the beginning of the year 1981 when suddenly it was decided to break up the High Courts into various permanent Benches which would operate at the Divisional levels. The principle behind the creation of such permanent Benches was again salutary i.e. to provide speedy justice at the doorsteps. Besides many other phenomenal changes that the High Courts had to resultantly undergo one that concerns us here for the purposes of the subject under discussion is that many of the honourable Judges of various High Courts had to leave the now-called 'principal seats' and to hold Courts at those Benches. Since thereafter we have witnessed a continuous and unceasing shifting and transfer of the learned Judges from one Bench to another. Sometimes the movement is so rapid and short-termed that it is difficult to keep track and to know at which Bench a particular learned Judge is holding his .Court. It is with reference to this major .development that I now proceed to examine the 'propriety' of a rigid and inflexible application of the 'rule' under discussion which has, in the changed circumstances, caused untold inconvenience to the public at large and practical difficulties to the persons connected with the legal profession. Some such instances of hardship and inconvenience may be enumerated as follows:‑ (a) The transfer of the learned Judge (who had earlier on dealt with the matter) from one particular Bench to another hardly comes to the knowledge of an ordinary rustic family of an accused who invariably travel long distances and approach the relevant Bench having the territorial jurisdiction in the first instance only to find out that now they have to go to another Bench hundreds of miles away from the earlier Bench. (b) After reaching the new Bench they have to engage a different counsel in different and unfamiliar surroundings which not only puts them to extra expense but also makes them vulnerable to unwholesome abuses of the profession curried out by some undesirable elements. (c) It is also quite likely that by the time the accused's bail application is drafted, processed and filed that particular learned Judge may leave that particular Bench and go on to another Bench at the other end of the provincial boundary. Even otherwise it is common practice experienced by lawyers practising before the Benches that in a sizable proportion of bail matters an application is admitted to hearing by one learned Judge and then finally disposed of by another learned Judge in the absence of the former. (d) Although the Constitutional requirement under Article 198(5) that a Judge be nominated to a Bench for a period of not less than one year is being followed by the High Courts but in practical terms, some inroads have been made in this one year rule. It has been observed that within the assigned period of one year a Judge is recalled to the Principal Seat for weeks together after every couple of months or so leaving the accused absolutely dumbfounded and confused as to whether they should, during that period, approach that particular Judge at the Principal Seat for the purposes of their bail application or to wait till the learned Judge returns to the Bench after a few weeks. This situation assumes alarming proportions during the summer and winter vacations when the learned Judges are assigned duties at various Benches only for a week or two at a stretch. Imagine a learned judge, nominated to a Bench for one year, going as Vacation Judge to another Bench only for a week and granting or refusing bails in scores of cases. After his departure from that latter Bench that learned Judge is not likely to return to that Bench for at least one year or so. It would only mean that those scores of accused and their hundreds of co-accused in those cases or their cross-cases are now to have nothing to do with their own Bench (created for providing speedy justice at their doorsteps) and for the purposes of seeking bail or its cancellation they have to approach another Bench for at least one year or even more unless that learned Judge visits that particular Bench again. But in such a case of occasional visit the learned Judge might again be gone before the accused even comes to know of this development. This is an example of only one Judge coming on a short working visit to a particular Bench. Kindly imagine the enormity, the gigantic proportion and the magnitude of the situation when scores of learned Judges are seen travelling from Bench to Bench and holding Court at various places for short spells with no future certainty of their schedule of return. Thus, a rigid and inflexible application of the 'rule' under discussion which is mainly based upon a principle of 'propriety' may ultimately destroy the very basis and defeat the very spirit of the Constitutional mandate vis-a-vis creation of these Benches and nomination of the Judges thereto. (e) A situation can be visualized where that particular learned Judge proceeds on leave or where he declines to hear the second bail application for some reasons and where the earlier decision was not given on merits and where the subsequent bail application is filed on totally new and fresh grounds. In such like situations a reference to the learned Chief Justice or working out any other feasible arrangement would pose great practical difficulties. (f) Transfer of files from one Bench to another entails long and uncertain delays which may undermine the urgency which is inherent in a bail matter as, after all, it deals with the question of liberty of a citizen who is presumed in the eyes of law to be innocent till proved guilty a Court of law. There may be cases where the offences involved are bailable and cases which require further inquiry within the purview of section 497(2), Cr.P.C. According to the honourable Supreme Court in Dr. Behram Khan's case (P L D 1986 S C 118) in such like cases the accused is entitled to bail as a matter of right. It goes without saying that not only that justice delayed is justice denied but it is equally true that a right delayed also amounts to the denial of that right. (g) Production of record of cases by the investigating agencies at Benches situated far away from the police stations concerned may not only entail long absence of the Investigating Officers from the places of occurrence arid inquiry but may put extra burden on the public exchequer besides hampering the other duties regarding law and order which such officers have also to attend to. (h) The unremitting traffic of files from one Beech to another may also cause loss or destruction of some files and such a remittance may also suffer at the viands of those who may be interested in delaying the matter to the detriment of the accused. (i) In the recent years it has been noticed that bail matters have constituted almost half of the disposal of the High Courts. In other words now we can expect a sizable number of a High Court's files to be always in the transit besides, it is needless to mention, a large section of the public also sweating along the track. 'From the instances referred to above and from many more that can be enumerated in this respect, it is clear that in the changed circumstances the 'rule' under discussion, although salutary and proper in its own right, is not advancing the ends of providing speedy and inexpensive justice at the doorsteps of the citizens. Article 37(d) of the Constitution, dealing with the Principles of Policy, categorically provides that the State shall "ensure inexpensive and expeditious justice" and under Article 29(1) a strict observance of these principles of policy has been referred to as the "responsibility of the concerned organ of the State". The Judiciary, being the relevant organ of the State in this respect, is, thus, under a Constitutional obligation and responsibility to 'ensure inexpensive and expeditious justice'. The honourable superior Courts have almost always referred to the 'rule' under discussion to be a rule of 'propriety' and not of substantive law. Therefore, under the changed circumstances a rule of 'propriety', which detracts the judiciary from its Constitutional obligation could hardly offer an insurmountable obstacle. After all a rule of propriety, by its very nature, can never be rigid or fixed. It has to mould and bend a little with the changed circumstances. A 'propriety' in one sense may not be allowed .to become an 'impropriety' in another. In the above-mentioned Zubair's case (P L D 1986 S C 173) the honourable Supreme Court, after referring to the possibility of a "false impression" that the subsequent order passed by a different Judge was based on "extraneous considerations", observed that "it is mainly to avoid this" that this principle was being emphasized "over and over again" over a number of years. The integrity of the learned Judges, no doubt, is beyond question. But an effort to dispel and forestall one "false impression", when contrasted with the difficulties and hardships posed in the changed circumstances in this respect, may lead to the possibility of fostering of another impression, somewhat justified in the present context, that dispensation and pursuit of justice has become more and more difficult and cumbersome. Creation of such an additional impression is also equally dangerous, unhealthy and unwholesome because in such an eventuality the common man may lose faith in the judicial system itself. In the end it needs pointing out that the application of this principle and rule has not been extended to the disposal of other miscellaneous matters in civil and criminal cases where the stakes of the parties are equally high. If a possibility of the said 'false impression' in other matters has failed to cast a shadow of doubt on the unquestionable integrity of the honourable judges of our superior judiciary then the disposal of miscellaneous bail matters may not be made an exception in this respect. Finally it may be stated in utmost humility that the principle under discussion is indeed salutary but in the changed circumstances on account of the creation of various permanent Benches of the High Courts and a continuous transfer of Judges from one Bench to another a rigid and inflexible application of the rule needs a little relaxation and the honourable' Supreme Court of Pakistan, in an appropriate case, may graciously consider taking a fresh look at the problem with a view to finding some way out for minimising the hardship in genuine cases. ***