2004 PLP 1500 (YLR)

2. Relevant facts, briefly stated, are that Muhammad Iqbal, accused‑appellant was released on bail by the District Court of Criminal Jurisdiction Bhimber on 12‑1‑2002 in offences under section 5, IPL, 302, 147, 148 and 149, A.P.C. In this case previously the accused‑respondent was denied bail by the District Court of Criminal Jurisdiction Bhimber on 16‑3‑2000. He assailed that order in a revision petition before the Shariat Court. The bail was refused to him by Mr. Justice Iftikhar Hussain Butt, the learned Judge of the said Court, vide his order dated 22‑8‑2000, which order was also maintained by this Court vide order dated 1‑2‑2001. He filed a second bail application before the District Court of Criminal Jurisdiction Bhimber on 29‑9‑2001. This time his bail application was allowed by the said Court vide order dated 12‑1‑2002. The revisional jurisdiction of the Shariat Court was availed against the said decision by complainant Bashir Ahmed which was placed for hearing and disposal, before Mr. Justice Muhammad Ashraf Kiani, the learned Judge of the Shariat Court at Mirpur, before whom a preliminary objection was raised that as the first application for bail was decided by Mr. Justice Iftikhar Hussain Butt, the learned Judge of the Shariat Court, therefore, in view of the rule of law laid down by the Supreme Court of Azad Jammu and Kashmir, the second bail application be also placed before the same Judge for hearing and disposal under law. The learned Judge of the Shariat Court sent the file to the learned Chief Justice of Shariat Court for reconstitution of the Bench. The learned Chief Justice of Shariat Court through order under challenge dated 13‑5‑2003, again sent the case to Mr. Justice Muhammad Ashraf Kiani, the learned Judge of the Shariat Court, for hearing and disposal under law by making the following observations:‑‑ "In this case in view of above referred position, particularly, para.9 of the judgment reproduced above and on account of a Judge permanently sitting at the station to where the case relates and the Judge, who had earlier decided the bail matter in this case, not being posted at that station, it is unavoidable to direct that the Judge sitting at Mirpur Circuit of the Shariat Court shall decide the matter." Hence this appeal.

3. Ch. Ali Muhammad, the learned counsel for the appellant, argued that this Court has repeatedly laid down the rule of law that second or successive bail applications in the same case, either by same accused or any other co‑accused, must be placed before the same Judge who had dealt with the first bail application. According to him, the wisdom behind this rule of law is that the judicial system being practised in the Azad Jammu and Kashmir should not be put into disrepute as there is every likelihood that conflicting judgment may be given by another Judge if the bail matter is placed before him which may give rise to a false impression that second bail order was based on extraneous consideration. The reliance was placed by him upon the following authorities:‑‑ In case titled Farid v. Ghulam Hussain and others 1968 SCMR 924, where one Judge of the High Court had expressed strongly against the grant of bail to an accused person. Subsequent bail application was placed before another Judge of the High Court who admitted the accused persons to interim bail in the sum of Rs.15,000 each. The order was challenged in the Supreme Court by the complainant. The Supreme Court allowed the appeal and set aside the order of interim bail by observing that in accordance with long established practice and the rule of propriety, the other Judge of the High Court should transfer the bail application for disposal to the first Judge to avoid two contradictory orders being passed in same case by the High Court. In case titled Muhammad Khan v. Muhammad Aslam and 3 others 1971 SCMR 789, a learned Judge of the High Court had refused to extend the concession of bail to the accused person. However, on subsequent bail application the other Judge had allowed him bail. The matter came in appeal before the Supreme Court. While allowing appeal, the following observations were recorded:‑‑ "Since leave was granted this Court has in more than one case pointed out that as a judgment delivered in a criminal case is not open to review under the Code, it is not proper for a learned Judge of the High Court to allow bail to an accused person who has been earlier refused bail by another Judge of the same Court. It does not mean that once bail is refused by the High Court no fresh application for bail will lie. If fresh grounds have come into existence bail may be allowed, but 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 case titled The State v. Muhammad Yousaf and 3 others 1979 PCr.LJ 665, "after discussing number of authorities on the subject it was laid down that the rule of propriety and harmony demands that all bail applications made in the same case be referred to the same Judge. In this case the guide lines for the conduct of the counsel and other concerns as laid down in case titled Abdul Ghafoor v. The State PLD 1975 Lah. 754, were again reiterated. In Khan Beg v. Sajawal and others PLD 1984 SC 341, once again the same principle was reiterated by the Supreme Court of Pakistan that subsequent bail petition should be placed before the same Judge who had dealt with earlier petition and displeasure was conveyed by the Supreme Court about the conduct of the accused person in that case who had withdrawn a petition from the Judge who had earlier refused him bail and then filed the same petition thereafter before another Judge. It was stressed that all steps should be taken to avoid possibility of two contradictory orders passed by the Judges of the same Court. In case titled Karamat Hussain v. Faraqat Hussain and 4 others PLD 1987 SC AJ&K 27, where bail application of an accused person, namely, Gull Hussain, was dismissed by Mr. Justice Sardar Muhammad Ashraf Khan, a learned retired Judge of this Court as Judge of the Shariat Court. Subsequent bail application was heard by Mr. Justice (Recd.) Muhammad Akram Khan, who released the accused person on bail. When matter came before the Supreme Court an objection was raised that the practice which has been established by series of judgments delivered by the Supreme Court of Pakistan and the High Courts during the last so many years, the subsequent bail application should have been placed before the same Judge who had earlier heard the bail application. After taking into consideration various authorities from the jurisdiction of Pakistan it was laid down that "all subsequent petitions for bail by the same accused or in the same case should be referred to the same Bench which had disposed of the earlier petition" because if the same is entrusted to a different Judge then in case of conflicting orders an impression though false may be created that the second order was passed on extraneous considerations. Therefore, in order to avoid such an impression this Court over and again has emphasized that subsequent bail application must be placed for hearing and disposal before the same Judge who had dealt with the first bail application and also that the counsel must disclose the fact of having filed a previous application and to state the result thereof. In last case, which was referred to by the learned counsel for the petitioner, titled Karamat Hussain v. Kaneez Fatima, Criminal Appeal No.47 of 2002, decided by this Court on 20‑2‑2003, the same view was once again reiterated by us.

4. In light of the above referred submissions, the learned counsel for the appellant argued that the learned Judge who had decided the first bail application, heard the same under the orders of learned Chief Justice of the Shariat Court. Now the learned Judge has been sent for indefinite time to another District Headquarter for hearing the cases which. perhaps is not in accordance with the provisions of the Shariat Court Act. He further argued that on account of such practice, the rule of law laid down by this Court cannot be defeated.

5. On the other hand the learned counsel for the accused respondent has accepted the rule of law laid down by this Court. He has stated at bar that he has no objection if the case is entrusted to the same learned Judge for hearing and disposal under law.

6. We have considered the respective arguments of the learned counsel for the parties and gone through the record of the case. This Court right from 1987 up to this time has repeatedly emphasized over and again that all petitions for bail in a case by the sate accused or in the same case by other co‑accused person should be referred to the same Bench which had decided the first bail application. This rule of law is based on the solitary principle that no person should assume in the event of conflicting orders passed by two Honourable Judges of the same Court that the subsequent one was the result of some extraneous consideration. In a case, titled Karamat Hussain's case referred to above the same view was once again reiterated by this Court. However in para.9 it was mentioned as under:‑‑ "

9. Before parting with the order it would be useful to mention to avoid any confusion that in unavoidable circumstances when a Judge who had previously heard the matter was not on the Bench the matter can be entrusted to another Bench."

7. This exception in the present case has found favour with the learned Chief justice of the Shariat Court who entrusted the case to another learned Judge through impugned order dated 13‑5‑2003, whereas this exception was not available in the present case because the learned Judge who had decided the earlier application for bail is still on the Bench of the Shariat Court. Merely by keeping him at some other place in some other District the spirit of law repeatedly laid down by this Court cannot be and should not be defeated. In a case titled khan Beg v. Sajawal and others PLD 1984 SC 341, the accused person were declined bail by the learned Judge of the High Court. In second round the bail application was once again moved before the same Court and was placed before the same Bench. Meanwhile the learned Judge w‑as posted at Lahore, the Principal seat of the High Court. The accused persons withdrew their bail petition and presented the same before another Judge who had replaced the said Judge at Circuit Bench Rawalpindi. It must be remembered that in. Pakistan the High Court's Circuits have been established under the provisions of the Constitution of 1973 of Islamic Republic of Pakistan. On the arrival of new Judge the petitioner once again moved his petition for bail. The learned Judge allowed the bail petition to the accused persons. The complainant of the case filed petition for leave to appeal which was converted into appeal and the order of bail was recalled by making following observations:‑‑ " 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. The practice of withdrawing a petition from before one Judge and then making a fresh petition soon thereafter so that the same be dealt with by another Judge cannot be approved. We are satisfied that no proper or fresh ground existed for making or entertaining the second bail petition. We, therefore, convert this petition into appeal and allow it. The impugned order granting bail to respondents Nos. 1 to 7 is set aside."

8. It is an admitted position of law that constitution of the Bench is the exclusive jurisdiction of the learned Chief Justice. In bail matters the learned Chef Justice exercised his prerogative by entrusting the case to a particular Judge. However, under the rule of law, laid down by this Court the second bail application should be placed before the same Bench. It is the duty of the counsel to mention in subsequent bail application the facts of having filed bail application previously and the result thereof, so that the subsequent bail application is referred to the same Bench to avoid conflicting decisions and disharmony in the established practice of the Court. In view of above, we set aside the impugned order of the learned Chief Justice of the Sharilt Court dated 13‑5‑2003, and direct that this bail application shall be placed before the same Judge who has previously decided the bail matter in the case. N.H.Q./5/SC(AJK) Order accordingly.