P L D 2002 Supreme Court 1 (PLP)

IRSHAD HASAN, KHAN, C.J.‑‑‑In The State v. Zubair (PLD 1986 SC 173), it was inter alia, observed that if a Judge of a High Court had heard a bail application by an accused person, all subsequent applications for bail of the same accused or in the same case, should be referred to the same Bench/learned Judge wherever he is sitting. In case it is absolutely p 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, ether Bench/Judge of that Court.

2. By order dated 22‑9‑2001 one of us (Irshad Hasan Khan, Chief Justice) taking suo motu notice of the difficulties arising out of the strict implementation of the ratio in Zubair's case' (supra) passed the following order: "It has been brought to my notice on the administrative side that the case reported as The State v. Zubair PLD 1986 SC 173, to the extent that subsequent bail applications must be placed before the same learned Judge who had dealt with the first bail application under all circumstances even when he is on leave or otherwise not available due to exigencies of service or because of his posting at particular Bench, is resulting into not only unavoidable inconvenience but even to misery. It is, therefore, in the interest of justice that true spirit underlying the decision in Zubair's case (supra) be authoritatively laid down.

2. I, therefore, taking suo motu faction in the matter under Article 184(3) of Constitution of the Islamic Republic of Pakistan,[ E? 1973, direct that a case be' registered and listed for preliminary hearing before the Court u? 24‑9‑2001.

3. We have gone through the judgment in Zubair (supra) as well as Mir Khan v. The State 1999 SCMR 790, Farid v. Ghulam Hassan 1968 SCMR 924, Muhammad Khan v. Muhammad Aslam 1971 SCMR 789, Muhammad Khan v. Sanaullah PLD 1971 SC 324; Khan Beg v. Sajawal PLD 1984 SC 341, State v. Zubair PLD 1986 SC 173, Muhammad Taj v. Muhammad Akhtar 1997 SCMR 1336, Roshan v. State 1989 PCr.LJ 609, Badal v. State 1990 PCr.LJ 3.1 and Muhammad Mustaqeem v. State 1990 PCr.LJ 1216, it was observed: "While the rule of propriety, harmony, consistency and just or fair disposal of bail matters, as inter alia enshrined in Zubair's case, is a salutary one, to be observed as far as practicable, the superior Courts cannot make a fetish of technicalities to an extent, where the object of the rule is relegated to the background and mere technicalities are allowed to rule the situation. It is in this perspective that subsequent bail applications, purely on the ground of statutory delay and the sank bail application, where mere notice or interim relief is ordered or accorded and which are still required to be heard at a Bench other than the Principal Seat of the High Court concerned or vice versa, are to be viewed. Similar would be the approach when a Judge, still adorning the High Court, is away on leave or otherwise non‑available for a reasonable period of time, for keeping such a bail matter, which of necessity is an urgent one, awaiting the availability of the Judge concerned, an obviously result not only in avoidable inconvenience but even to misery. Such exigencies are already contemplated in the applicable precedents. Thus, their lordships in Muhammad Khan v. Sanaullah PLD 1971 SC 324 (329) recorded as below: "We fail to see why the rule laid down in Farid v. Ghulam Hassain and others which must have been brought to the notice of the learned Judge was not followed in the present case. We were 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." Having said as much, we should not be construed to, exclude from the operation of the rule in Re: Zubair, a case where, even though only notice has been ordered or interim bail is allowed yet the order passed, comes to reveal a situation, warranting that the matter be heard by the same Judge of the same Court. Such a situation is possibly exemplified by Muhammad Taj v. Muhammad Akhtar (997 SCMR 1336 (supra): "Based on the foregoing discussion we are of ?he view that the learned Single Judge, who had, a good deal earlier, allowed interim bail before arrest to the present petitioner, when apprised of a subsequent tiling and disposal of another bail application finally by another learned Judge of the High Court acted correctly and in consonance with the principles discussed, when he desired the case ;o be put up for being dealt with by the second Judge aforesaid. In doine so, even though the learned Judge did not strictly conform with the opinion in Zubair's case (supra), he did apply the spirit underlying that decision. "

4. It. appears that the spirit underlying Zubair's case which still holds the field was not intended to create difficulties/bottlenecks or to work C prejudicially to the interest of all concerned. If it is so, it is for learned Chief Justice concerned to examine whether iii any of (lie given case, due to non?availability of the Bench/Judge who had earlier dealt with the bail application owing to exigencies of service or any other sufficient cause, departure has to be trade in the larger interest of justice and refer the cause to another Bench/Judge for reasons to be recorded in writing. The same procedure should be followed at the Benches where similar orders may be passed by the Senior Judge. Let the above arrangement as propounded in this paragraph be followed as an interim measure till the final disposal of the Suo Motu Criminal Review No.9 of 2001, after notice to all Advocates‑General of the Provinces and Registrars of the High Courts who, after seeking instructions from the respective Chief Justices shall submit reports in regard to the difficulties being faced in im dplementation of the ratio in Zubair (supra).

5. A copy of this order be sent to all the learned Chief Justices of the High Courts as well the Federal Shariat Court. M.B.A./S‑138/S ???????????????????????????????????????????????????????????????????????????????? Order accordingly.