1998 PLP 1321 (MLD)

MUHAMMAD YOUNAS SURAKHVI, J.

This appeal, with the leave of the Court, has been filed to challenge the order passed by the High Court on 25th of June, 1997, whereby the appellant's prayer for being enlarged on bail was rejected.

2. The brief facts of the case are that F. I. R. No. 1 of 1996 was lodged by Muhammad Farid Awan, Deputy Accountant-General Muzaffarabad, against appellant and many other co-accused in consequence of which a case under sections 419/420, 467/468, 471/409 Penal Code read with section 5(2) of the Anti-Corruption Act, was registered on January 11, 1996. The appellant moved an application for his release on bail before the learned Anti-Corruption Judge, Muzaffarabad but his prayer was declined vide order, dated June 16, 1997. Against this order the appeal taken to the High Court was dismissed by Mr. Justice Muhammad Siddique Farooqi vide his order, dated 25th of June, 1997, which is impugned in the present appeal.

3. During the course of arguments Raja Muhammad Hanif Khan, the learned counsel for the appellant, raised an objection that it has been the consistent practice and a salutary rule laid down by this Court that successive bail applications in the same case by the same accused or his co-accused should be heard by the same learned Judge who heard and disposed of the first bail application. Emphasizing his point of view the learned counsel submitted that in this case the first bail application of one Amjad Khan, co-accused in the case, was heard and disposed of by Mr. Justice Ch. Muhammad Taj, vide his order, dated May 6, 1996, whereby the learned Judge allowed the concession of bail to the co-accused. Another bail application of two co-accused Abdul Hamid and Muhammad Maqbool was heard and disposed of by Mr. Justice Kh. Muhammad Saeed, the learned Chief Justice, vide his order, dated May 26, 1997, whereby the aforesaid two co-accused were released on bail. However, the appellant's bail application, was heard and disposed of by Mr. Justice Muhammad Saddiq Farooqi, whereby he declined to release the appellant on bail. The learned counsel pressed into service the submission that as a matter of salutary rule of law and the dictum laid down by this Court in various cases the bail application of -the appellant should have been fixed and heard by the same Judge who first heard and disposed of the bail application in this case. The learned counsel for the appellant placed reliance on Muhammad Tasleem v. The State 1996 P Cr. L J 580, The State v. Zubair and 4 others (PLD 1986 SC 173) and Karamat Hussain v. Faraqat Hussain (PLD 1987 SC (AJK) 27).

4. Mr. Shiraz Kayani, the learned Advocate-General, submitted that it was the duty of the learned counsel for the parties to bring the matter to the notice of the learned Judges who subsequently heard and disposed of the bail applications in the same case and by concealing the facts the counsel for the parties have committed mis-conduct.

5. After hearing the learned counsel for the parties we are of the view that the impugned judgment has been passed in violation of our previous dictum laid down in various judgments out of which we may refer only two reported cases of this Court relied by the learned counsel for the appellant and one case from the jurisdiction of Supreme Court of Pakistan. In Karamat Hussain v. Faraqat Hussain (PLD 1987 SC (AJK) 27) it was held that if one of the learned Judges of the Shariat Court/High Court has decided a bail application a fresh bail application in the same case should be heard by the same Judge. Speaking for the Court Raja Muhammad Khurshid Khan, the then Chief Justice, observed as follows:

"It, therefore, follows that where one Judge of the Shariat Court/High Court has expressed himself against grant of bail, another Judge of the Shariat Court/High Court in accordance with the long-established practice of superior Courts in Pakistan and rule of propriety with which we respectfully concur, when moved afresh for bail of an accused or his co-accused in the same case should transfer such bail application for disposal of the same Judge who has already dealt with the matter in order to avoid contradictory order. It was so held in the case of Farid v. Ghulam Hussain (1968 SCMR 924). The latest ruling on the subject is Khan Beg v. Sajawal and others (PLD 1984 SC 341) wherein apart from holding that all subsequent bail applications in the case should be placed before the same learned Judge who had dealt with the earlier bail application, practice of withdrawing a petition from one Judge and then making a fresh bail application soon thereafter was also disapproved." At another place the following observation was recorded:

" ....It is mainly to avoid this that the Supreme Court of Pakistan has emphasised over and again that subsequent bail application must be placed for disposal before the same learned Judge who had dealt with the first bail application and also that the counsel must disclose the fact of having filed previous application and to sate the result thereof. We fully endorse the view of the Supreme Court of Pakistan."

6. In case of Muhammad Tasleem Khan v. The State (1996 P Cr. L J 580) the same principle was reiterated. In a case reported as The State v. Zubair and 4 others (PLD 1986 SC 173) it was observed at page 177 that where one Judge of the High Court has expressed himself against the grant of bail, another learned Judge of the same High Court in accordance with the long standing established practice and rule of propriety, when moved for bail of an accused or his co-accused in the same case should transfer such bail application for disposal to the sane Judge who had already dealt with the matter earlier in order to avoid contradictory order. It was observed that the aforementioned principle is a salutary principle in as much as the practice of filing successive bail applications in the same case by the same person or his co-accused and getting it fixed before the different Judge, is not only likely to result in conflicting judgments but also tends to encourage malpractice by the accused persons and to bring the judicial system into disrepute, because in the event of a conflicting order being given by p, another learned Judge in a subsequent application an impression, though false, may be created that the second order was based on extraneous considerations. It is mainly to avoid this that this Court has emphasised, 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 and also that the counsel must disclose the fact of having filed a previous application and to state the result thereof. It is regrettable that this salutary rule was overlooked by the learned Judges who dealt with the subsequent bail application in the present case.

7. Without expressing ourselves on merits of the case, we are constrained to hold that the impugned order is not sustainable in law. We, therefore, accept the appeal and set aside the order under appeal. It is directed that the High Court will treat the bail application filed by the appellant as pending and the same should be disposed of afresh by Mr. Justice Ch. Muhammad Taj, the learned Judge, who decided the first bail application in the case. A.A./2711SC(AJ&K) Order accordingly.