2002 SCMR 171 (PLP)

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. l 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 1997 SCMR 1336 (supra)'. 'Based on the foregoing discussion we are of the 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 filing 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 to be put up for being dealt with by the second Judge aforesaid. In doing 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 (supra) which still holds the field was not intended to create difficulties/bottlenecks or to work prejudicially to the interest of all concerned. If it is so, it is for learned Chief Justice concerned to examine whether in any of the 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 made 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 implementation 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'."

2. Pursuant to the directions issued to the Registrars‑ of the Federal Shariat Court and the High Courts following reports have been received: "The Hon'ble Chief Justice, Federal Shariat Court has gone through the Supreme Court order dated 24‑9‑2001 passed in Suo Motu Criminal Review No.9 of 2000 and his Lordship fully agrees with the observation and direction recorded in para. 4 of that order. The Order is being followed as an interim measure till the final disposal of the Suo Motu Criminal Review No.9 of 2001. It is submitted that the major difficulties being faced in implementation of the ratio in Zubair's case reported in PLD 1986 SC page 173 are mentioned below:

1. Sindh High Court has a permanent Bench of Sukkur and Circuit Courts at Hyderabad and Larkana. The learned Judges keep on rotating for performing duties at the Principal Seat, Circuit Bench and Circuit Court. It causes great inconvenience and also consumes time when the learned Judge having heard and decided a particular matter at one place is no more available there. All subsequent matters of similar nature (bail application etc.) are to be heard by the same learned Judge who might be sitting at another seat/circuit which not only becomes the cause of inconvenience and delay but also disturbs the rules/policy applicable in respect of territorial jurisdiction of the different seats. It also operates to great disadvantage of litigants as it results in heavy financial burden.

2. The Roster is re‑scheduled monthly and Benches are reconstituted. The learned Judges attending the criminal work during one roster are assigned the job of other nature, therefore, the routine work is disturbed when the Hon'ble Judges are again made to sit on criminal side only for single such matter which they are required to hear and decide in the light of the ratio in Zubair's case.

3. If the matter is heard and decided by D.B. the second application in that matter/case gets delayed and becomes cause of inconvenience for the reason that same learned Judges no more form a D.B. or that they would not have been assigned criminal work according to the new roster. " The matter was placed before the Hon'ble Chief Justice and his Lordship has been pleased to observe that the consequent movement of the Hon'ble Judges from the principal seat to a Bench and from one Bench to another Bench is causing difficulty and hardship for the litigants and even for the Hon'ble Judges in some cases. It was perhaps for this reason that the Hon'ble Chief Justice of a High Court was given authority through para. 9 of the judgment in Zubair's case to fix a subsequent bail application before any other Hon'ble Judge for disposal if it appeared to be absolutely impossible to place the second or subsequent bail application before the same Hon'ble Judge who had dealt with the earlier bail application of the same accused or of some other accused persons in the same case. The difficulty actually being faced on the ground is mainly two fold. At time an Hon'ble Judge having heard a bail application either at the principal seat or one of the three Benches ceases to hold court at the principal seat or at any such Bench and resume work at some other Bench. The second situation which is more complicated is where any such bail application is heard not by a Single Bench but by a Division Bench whereafter the Hon'ble Judges of such a Division Bench move to different Benches of the High Court and it no longer remains feasible to assure a sitting of the same Division Bench to hear requisite bail application.

3. Keeping in view the above difficulties the Hon'ble Chief Justice has been pleased to recommend as under:‑‑ '(a) Since the matter may involve sending of cases from one Bench to another etc., therefore, power to relax the rigours of the dictum of Zubair's Case should be conferred only on the Honourable Chief Justice of a High Court and the said power may not be conferred on the Honourable Senior Judges of different Benches; (b) In the bail matters heard by a Division Bench, it could be observed that ordinarily if the same Division Bench is not available either at the principal seat or at a Bench, as the case may be, then the second or subsequent bail application could be heard by a Division Bench of which one of the Honourable Judges who was a Member of the earlier Division Bench is a Member and .if such a situation did not exist only then the matter should be brought to the notice of the Honourable Chief Justice to pass orders for the matter to be heard by a Division Bench of which neither of the Honourable Judges of the earlier Division.. Bench was a Member.' (c) As has been mentioned above, such powers were given to the Honourable Chief Justices of the High Courts through para. 9 of the judgment of the Zubair's case but these were to be exercised by an Honourable Chief Justice only in a situation which was of an absolute impossibility. It is also recommended that the object could be achieved only by softening this condition of absolute impossibility.'

3. Mr. Makhdoom Ali Khan, learned Attorney‑General for. Pakistan has entered appearance and submitted that the convention which requires that successive bail applications be heard by the same Judge is not absolute. He argued that it must also be further balanced against the no less important consideration that bail matters are always of an urgent nature. Citing various precedents of this Court, he submitted that at time continuing to wait for the availability of the same Judge may lead to unnecessary inconvenience and cause misery, therefore, the rule in Zubair (supra) must not be applied where the Judge who dealt with the bail application earlier is on leave or otherwise not available for a reasonable period of time. He submitted that in order to avoid abuse of process of the Court and to maintain judicial discipline, in all such cases a reference must be made to the Chief Justice. He went on to argue that simply that a Judge is not available at a particular Bench Will not ipso facto warrant that the application be heard by another Judge, in that, .in such cases the other Judge, where the facts and circumstances of the case permit, may admit the accused to interim bail and then transfer the file to the Judge who had earlier heard the case. He further argued that since the decision in Zubair (supra) is primarily directed towards maintaining harmony in judicial decisions and judicial discipline, the rule must not be made to apply to cases where the bail application is moved on a fresh ground i.e. a ground which was neither raised nor was available at the time when the first application was heard. Such an application, too, may be heard by another Judge if the Judge who heard the first application is not available. Such unavailability is, however, to be first confirmed by the Chief Justice concerned on a reference made to him in this regard. There is no danger of conflicting decisions in such cases as the bail application is based on different grounds. He concluded his arguments by submitting that the rule in Zubair (supra) is based on the salutary principles that justice must not only be done but also seen to be done. It also promotes the Constitutional ideals that no one should abuse the process of the Court (Article 204) and the independence of the judiciary must be fully secured (Article 2A). These ideals cannot; however, be fully promoted unless the rule in Zubair (supra) is made to accommodate the equally important Constitutional ideals of expeditious and inexpensive justice [(Article 37(d)] which though a Principle of Policy can be judicially enforced as it will be read into the non‑derogable Fundamental Right guaranteeing the inviolability of the dignity of man (Article 14). Keeping bail applications pending for long periods of time by making a fetish of technicalities not only denies these Constitutional ideals but also impedes access to justice which is a Fundamental Right protected by Article

14. He referred to PLD 1993 SC 341 and PLD 1996 SC 324.

4. The learned Attorney‑General for Pakistan as also the learned Advocate‑General for Sindh and N.‑W.F.P., the learned 4 Additional Advocates‑General for Punjab and Balochistan fully supported the action taken with a view to removing the difficulties being faced by the Courts in implementing the dicta in Zubair (supra). The learned Advocates‑General Sindh and N.‑W.F.P. also submitted that appropriate observations may be made in relation to those bail applications which are heard and disposed of

5. At this stage we would like to add to the tally of the case‑law, referred to in paragraph 3 of order dated 24‑9‑2001, two judgments of this Court i.e. Ali Hassan v. The State 2001 SCMR 1047 and an unreported decision rendered in Criminal Appeal No.458 of 2000 titled Muhammad Riaz v. The State on 18‑1‑2001. = 2002 SCMR

184. In both the causes the appeals were allowed and the cases were remanded to the High Court for rehearing of the bail applications by the very Benches which had permitted to withdraw the first bail applications.

6. In the light of the observations made, the case‑law referred to in order dated 24‑9‑2001, the submissions made by the learned Attorney- General for Pakistan, the stance taken at the Bar by the learned Advocates -General/Additional Advocates‑General and the reproduced reports of the Registrars of the Federal Shariat Court and the High Courts, there can be no dispute with the proposition that there is a pressing need to lessen the intensity of the ratio in Zubair (supra) vis‑a‑vis the forum for disposal of second or subsequent bail applications. Resultantly, the interim order dated 24‑9‑2001 is confirmed with the following modifications/clarifications: (1) Constitution of the Benches is the exclusive function of the Chief Justice. (2) Ordinarily, subsequent bail application by the same accused or in the same case must be placed for disposal before the same Single Judge/Division Bench of the High Court which had dealt with the first bail application. (3) If the learned Single Judge who had dealt with the first bail application is not available and departure from (2) above is unavoidable, the learned Chief Justice concerned may refer the second or subsequent bail application to another learned Single Judge at the Principal Seat or Permanent Benches/Circuit Benches, as the case may be. (4) Where the first bail application is heard and disposed of by a Division Bench which is not available either at the Principal Seat or the Permanent Benches/Circuit Benches at the time of filing of the second or subsequent bail application then such bail application shall be heard by a Division Bench of which one of the Judges was a Member of the Division Bench which dealt with the first bail application. If none of the Members of the Division Bench which heard the first bail application is available, the learned Chief Justice concerned may assign the subsequent bail application to any appropriate Division Bench at the Principal Seat or the Permanent Benches/Circuit Benches, as the case may be (5) Subsequent bail applications shall be filed, heard and disposed of at the Principal Seat or the Permanent Benches/Circuit Benches, as the case may be, where the first bail application was filed and finally disposed of. In the event of non‑availability of the learned Single Judge or the learned Member/s of the Division Bench, who had dealt with the earlier bail applications, the office at the Principal Seat shall obtain appropriate orders from the learned Chief Justice and the office at the Permanent Benches/Circuit Benches shall obtain appropriate orders from the learned Chief Justice through fax or on telephone for fixation of subsequent bail application before other appropriate Benches, in the interest of expeditious and inexpensive dispensation of justice in bail matters. (6) Subsequent bail application shall not be entertained unless accompanied by copies of earlier bail applications and copies of orders thereon. M.B.A./S‑148/S Order accordingly.